PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-7024

UNITED STATES OF AMERICA,

Petitioner – Appellee,

v.

CHRISTOPHER PERKINS,

Respondent – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. W. Earl Britt, Senior District Judge. (5:09-hc-02062-BR)

Argued: September 21, 2021 Decided: May 4, 2023

Before AGEE and WYNN, Circuit Judges, and Frank W. VOLK, United States District 

Judge for the Southern District of West Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Volk wrote the majority opinion, in 

which Judge Wynn concurred. Judge Agee filed an opinion concurring in the judgment. 

ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. Genna Danelle Petre, OFFICE OF THE UNITED 

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan 

DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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VOLK, District Judge:

This appeal presents two consequential questions. Both relate to the continued 

involuntary commitment of those afflicted with a mental illness. A commitment wrongly

perpetuated is an unwarranted restraint of liberty; a commitment errantly discontinued 

poses a danger to the committee and the public. See United States v. Bilyk, 949 F.2d 259, 

261 (8th Cir. 1991) (quoting United States v. Clark, 893 F.2d 1277, 1282 (11th Cir. 1990))

(noting the district court is entrusted with “‘an awesome responsibility to the public to 

ensure that a clinical patient’s release is safe.’”); United States v. Williams, No. 22-6464, 

2022 WL 16984705, at *5 (4th Cir. Nov. 17, 2022) (“Refusing to release a person who has 

served a criminal sentence based on a prediction that it would be too dangerous to do so is 

serious business.”); id. at *6 (Richardson, J., dissenting) (noting these types of cases require 

“tough predictive judgment[s]....”).

First, we are asked to set the proof standard necessary to support revocation of 

conditional discharge under 18 U.S.C. § 4246(f). No circuit has exhaustively addressed the 

question. Second, we consider the process by which the district court should make and 

support its crucial findings on dangerousness under § 4246(f) (the “dangerousness inquiry” 

or “risk assessment”). While there have been profound developments in the science of risk 

assessment in the past three decades, they are unmatched by updated, corresponding legal 

guidance respecting how the inquiry ought to proceed for those under a federal civil 

commitment order. We thus write at some length.

The district court did not have the benefit of the analyses within. We consequently 

vacate and remand for further proceedings.

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I.

A. Factual Background

On July 10, 2007, a criminal complaint was filed against Christopher Perkins. As 

discussed more fully within, he threatened a United States congressman. See Criminal 

Complaint, United States v. Perkins, No. 3:07-MJ-226, ECF No. 1 (W.D. Ky. July 10, 

2007). Mr. Perkins was deemed incompetent and unlikely to be restored in the foreseeable 

future. See Order, Perkins, No. 3:07-MJ-226, ECF No. 31. Mr. Perkins was then evaluated 

for dangerousness by the Bureau of Prisons (“BOP”) at Federal Medical Center Butner

(“FMC Butner”). Id. On May 20, 2009, a certificate of mental disease or defect and 

dangerousness issued pursuant to 18 U.S.C. § 4246. It was subsequently filed in the United 

States District Court for the Eastern District of North Carolina. J.A. 3, 16.1 The district 

court found that Mr. Perkins was “suffering from a mental disease or defect, as a result of 

which his release would create a substantial risk of bodily injury to another person or 

serious damage to the property of another.” Id. at 21. On December 7, 2009, Perkins was 

committed civilly to the custody of the Attorney General. Id. at 21.

Mr. Perkins’ mental condition improved with treatment. See id. at 22–23. On May 

3, 2010, the district court ordered his conditional discharge. Id. at 41. Mr. Perkins returned 

home and lived with his mother. Id. at 42. In 2011, however, Mr. Perkins violated his 

1 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by 

the parties in this appeal. 

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conditional discharge. Id. at 54. The district court revoked the term and recommitted him. 

Id.

On March 6, 2018, the United States certified his improved mental condition. It 

requested conditional discharge anew pursuant to 18 U.S.C. § 4246(e). Id. at 60–70. The 

district court conditionally released Mr. Perkins again on March 7, 2018. Id. at 78. The 

United States Probation Office for the Western District of Kentucky undertook supervision. 

Id. at 78–83. Nineteen conditions of release were imposed, including the following:

Condition 3: Reside at, and abide by the rules of, Fern Terrace Residential 

Care Facility (“Fern Terrace”);

Condition 4: Participate in global positioning service (“GPS”) monitoring; 

Condition 6: Actively participate in mental health care; 

Condition 7: Take all prescribed medications; and

Condition 15: No travel beyond the jurisdiction without permission of the

supervising United States Probation Officer.

Id.

On February 5, 2019, Mr. Perkins’ supervising United States Probation Officer

notified the district court of certain violations. He identified Conditions 3, 4, 6, 7, and 15. 

J.A. 90–91. He alleged Mr. Perkins (1) refused to follow Fern Terrace rules, (2) repeatedly

failed to maintain his GPS monitor, resulting in false alerts, (3) refused to meet with his 

psychiatrist and take prescribed medications, and (4) failed to receive permission before 

leaving the district. Id. 

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On February 6, 2019, the government moved to revoke Mr. Perkins’ conditional 

discharge. Id. at 84. On February 8, 2019, a bench warrant issued. Id. at 10–11. He was 

apprehended the same day. Id.

B. Procedural Background

On April 29, 2019, Mr. Perkins appeared for a revocation hearing. J.A. 96–106. The 

district court treated the probation officer’s report as evidence and recited in detail its 

allegations:

It is alleged that he violated condition No. 3 by failing to abide by all 

the rules established by the housing facility in that on November 15th, 2018, 

Mr. Perkins reported during a resident counsel [sic] meeting at Fern Terrace 

that he had bottles of vitamins in his room which are not allowed. All 

medicines, including over-the-counter medicine, must be distributed by the 

Fern Terrace staff and are not permitted in residents’ rooms. 

When confronted, Mr. Perkins refused to give the vitamins to the staff 

and locked them in his cabinet with a padlock. The staff called the Probation 

Officer, Mr. McChesney, who responded to the site and spoke to Mr. Perkins. 

Mr. Perkins then refused the officer’s instructions to unlock his cabinet and 

give the vitamins to the staff who could give them to him with his 

medications. And the staff had to cut the lock off . . . Mr. Perkins’ cabinet to 

retrieve the vitamins.

On June 28, 2018, it is alleged that Mr. Perkins took another resident’s 

money to purchase fast food and returned without giving the resident the food 

or money.

And it was also determined that Mr. Perkins had falsified the sign-out 

log at Fern Terrace on that date.

It’s alleged that Mr. Perkins has violated the condition No. 4 which 

requires him to participate in active GPS location for 12 months.

And it is alleged that on the following dates, Mr. Perkins failed to 

change his battery as instructed, which resulted in low battery alerts that had 

to be addressed usually in the middle of the night: April 3rd, 2018; April 5th, 

2018; April 7th, 2018; April 14th, 2018; April 15th, 2018; May 7th, 2018; 

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July 7th, 2018; October 3rd, 2018; February 1st, 2019; and February 3rd, 

2019.

The officer stated that he counseled Mr. Perkins multiple times after 

these alerts on how and when to change the battery in his monitor.

It is alleged that he has violated . . . condition No. 6, which . . . requires 

him to maintain active participation in a regimen of mental health care, which 

may include inpatient or outpatient residential treatment as directed by his 

U.S. probation officer and to follow all rules, regulations, instructions of the 

treatment staff and comply with the treatment regimen recommended by the 

treatment providers.

Further provides that any change in the mental health providers must 

be approved in advance by the probation officer. In this report it is alleged 

that Mr. Perkins on December 18th, 2018, refused to see the psychiatrist at 

the facility where he was living.

Condition No. 7 requires the respondent to take all medications 

prescribed to him by his treatment providers. And it is alleged that on 

multiple dates, Mr. Perkins refused to take different medicines prescribed for 

him.

Condition No. 15 requires respondent to not travel out of the Federal 

Judicial District without prior approval of his probation officer; and it is 

alleged that on August 8, 2018, Mr. Perkins requested and was permitted --

given permission by the Fern Terrace staff to go to a local hospital for an 

illness two times and that he left the hospital and traveled with his mother to 

a hospital in Nashville, Tennessee which is outside the Western District of 

Kentucky without permission of his probation officer.

Id. at 98-100. Counsel for Mr. Perkins stated her client “denie[d] the violations.” Id. at 101, 

104–05. The district court then provided Mr. Perkins an opportunity to respond to the 

allegations. Id. at 105. 

Mr. Perkins told the district court he left the jurisdiction due to a medical 

emergency; he added his probation officer “said that [was] okay with him [and] to keep 

him posted.” Id. at 101–02. Mr. Perkins also said he tried to follow the Fern Terrace rules

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as best he could. Id. at 103. He too denied the alleged violations. Id. at 101, 104–05. He 

added as follows:

I wasn’t given a lot of rules in the first three or four days adjusting to living 

at Fern Terrace. And they had some of the rules posted on the wall so I read 

those and reread those before this here. And Jodie Key, assistant 

administrator, and Valerie didn’t give me much communication that I was

causing a lot of problems at Fern Terrace.

Id. at 100. The district court asked Mr. Perkins’ counsel if she desired to question him. Id.

She declined. Id. The district court again asked if there was any additional evidence to be 

taken. Id. None was offered. Id.

After finding Mr. Perkins violated his conditional discharge (J.A.104), the district 

court observed as follows:

Well, Mr. Perkins, I’m going to have to find that you have violated the terms 

and conditions of your conditional release and recommit you, which isn’t to 

say that you can’t get out again on conditional release; but it’s obvious to me 

that you have somehow allowed the problems of other people, some in the 

facility where you live and primarily your mother, to take priority over your 

requirement that you abide by the conditions of the supervised release that 

you were under. You need to understand that when you are released on 

supervised release, you are under the daily control of your United States 

Probation Officer and when that probation officer tells you something, like 

he told you to unlock that safe in your room, your door — drawer or 

whatever, that is just like the Court speaking to you and if you don’t do that, 

you’re violating this Court’s order and we just can’t operate that way. You’re 

going to have to live up to the terms and conditions of your supervised release 

if you are allowed to leave again. 

Id. at 104–05. Mr. Perkins was then recommitted pursuant to 18 U.S.C. § 4246(f). J.A. 105, 

107.

On June 21, 2019, Mr. Perkins appealed. Id. at 11. He noted the district court failed 

to find, as required by § 4246, that he posed a substantial risk of bodily injury to another 

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person or serious damage to the property of another. See Brief of Appellant, United States 

v. Perkins, No. 19-6893, ECF No. 16, at *20–21 (filed Nov. 26, 2019). The United States 

moved to remand in light of United States v. Taylor, 776 F. App’x 155 (4th Cir. 2019). J.A. 

111–12. On February 28, 2020, we remanded as requested “for a rehearing as to whether 

[Mr. Perkins’] continued conditional release would create a substantial risk of bodily injury 

to another person or serious damage to property of another . . . .” Id. at 108. 

On June 1, 2020, the district court convened the rehearing. Id. at 122–44. It fully 

discussed the procedural posture to that point and, in painstaking detail, recited the 

violations alleged by the probation officer. Id. at 125. The district court, inter alia, recited 

(1) its review of the transcribed April 29, 2020, hearing, (2) the probation officer’s 

memorandum, and (3) a letter from Fern Terrace Administrator Valerie Carter. Id. at 126–

27. Mr. Perkins’ counsel stated it was unnecessary to repeat the entire April 27, 2019, 

proceeding. Id. at 125–26. She said Mr. Perkins continued to deny the alleged violations. 

Id. at 126. 

Mr. Perkins’ counsel asserted Fern Terrace was a “bad fit.” She added none of the 

alleged violations, if true, warranted a dangerousness finding. Id. at 128–29. The 

government responded that revocation was necessary given “an overwhelming series of 

events that are fairly typical of Mr. Perkins’ past.” Id. at 131. It emphasized “a pattern of 

Mr. Perkins not following [the] Court’s order but doing so in a way that does increase his 

risk,” which “escalate[s] his conduct and deteriorate[s] his mental health behavior.” Id. at 

134. The government forecasted a further decline if Mr. Perkins was “going to be 

discharged” from Fern Terrace, “potentially [become] homeless” and lack “the medications 

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. . . he needs.” Id. at 131. Absent revocation, the government feared Mr. Perkins would 

regress to his 2009 status. Id. at 135. Mr. Perkins spoke and continued to deny the alleged 

violations. See id. at 135–37. 

After hearing argument, the district court -- a judicial officer deeply experienced in 

the subject matter -- expressed misgivings about the criteria governing revocation:

This is a very new area for the Court to get into. In the past, I had felt 

— and I guess I still do — that violation of the order of conditional release 

is in itself a qualification for — a reason for revocation of conditional release 

and recommitting the respondent to the custody of the Attorney General. 

I really don’t — and I hope the Fourth Circuit will amplify what it 

meant by having to find these additional requirements. 

Id. at 138–39. These uncertainties were immediately followed by the district court’s ruling 

on remand:

I find as a fact that [Perkins] has violated the terms and conditions of his 

conditional release by violating condition No. 3 in that he left the facility and 

went elsewhere without permission of the people at the facility; that he is 

violating condition No. 4 because he has failed to participate in the GPS 

location monitoring system as required; that he violated condition No. 6 in 

that he has refused to see his psychiatrist; and that he has violated condition 

No. 7 in that he has not taken all of his medications as required; and that he 

has violated condition No. 15 by traveling outside of the divisional district 

without the prior approval of the probation officer. 

Now all of those things together I feel constitute reasons why this 

Court should find him in violation of his conditional release plan. 

Id. at 139. The district court continued: 

An implicit part of the commitment — and I think I’ve had some cases 

before where I revoked the conditional release because the committee was 

declared persona non gratis by the facility in which he was staying, which 

isn’t to say that this Court doesn’t believe that Mr. Perkins is not ready for 

conditional release again. He may very well be, and I hope he is. And I 

always tell the committees that when I revoke their commitment, and send 

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them back to the facility from which they came, that I hope and have every 

confidence that the mental health authorities at that facility are going to be 

working on and will soon submit to me another plan of conditional release. 

Id. at 140.

The district court then found “the violations heretofore set out depicting the conduct 

of the defendant during his release would create a substantial risk of bodily injury to 

another person or serious damage to the property of another.” Id. at 141. Mr. Perkins was 

then recommitted to the custody of the Attorney General. Id. at 141–42, 145–46. On July 

13, 2020, he noticed this appeal. Id. at 147.

II.

We review the district court’s factual findings for clear error and its legal 

conclusions de novo. See United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992) (“The 

trial court’s ruling denying [the committed person’s] unconditional release . . . is a factual 

determination that will be overturned by this court only if clearly erroneous.”); United 

States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (“On appeal, we review the district court’s 

factual findings for clear error and its legal conclusions de novo.”).

III.

Our two recent decisions in United States v. Curbow, 16 F.4th 92, 95 (4th Cir. 2021) 

and United States v. Wayda, 966 F.3d 294, 296 (4th Cir. 2020), discuss the statutory 

sections found in Chapter 313 of Title 18 dealing with “Offenders with Mental Disease or 

Defect.” 18 U.S.C. § 4241-4248. Our focus is much narrower, dealing exclusively with 

§ 4246. We thus lean on the § 4246 statutory explanations found in Curbow and Wayda. 

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Section 4246 addresses three types of inmates, namely, (1) those in federal custody 

for whom a sentence is about to expire, (2) those over whom the Attorney General has 

custody as a result of their inability to stand trial due to a mental disease or defect, and (3) 

those against whom all criminal charges have been dismissed due or related to their mental 

disease or defect. 18 U.S.C. § 4246(a); Curbow, 16 F.4th at 96. As noted in Wayda:

Section 4246 . . . govern[s] the federal process for civil commitment of 

particular persons in the government’s custody whose mental condition 

renders them a potential threat. Section 4246 has long provided a procedure 

for commitment of an individual who “is presently suffering from a mental 

disease or defect as a result of which his release would create a substantial 

risk of bodily injury to another person or serious damage to property of 

another.” 

Wayda, 966 F.3d at 297 (quoting 18 U.S.C. § 4246(a)).

The statute permits the director of a facility to certify an inmate housed there as 

“presently suffering from a mental disease or defect as a result of which his release would 

create a substantial risk of bodily injury to another person or serious damage to property of 

another . . . [(‘the dangerousness certification’)].” 18 U.S.C. § 4246(a); Curbow, 16 F.4th 

at 95–96. Importantly, the dangerousness certification must be preceded by the facility 

director’s finding “that suitable arrangements for State custody and care of the person are 

not available.” 18 U.S.C. § 4246(a). 

The dangerousness certification triggers a hearing. 18 U.S.C. § 4246(a); Curbow, 

16 F.4th at 96. The inmate is entitled to appointed counsel, the right to confront and cross

examine adverse witnesses, and an opportunity to present evidence, including his own 

testimony and that of subpoenaed witnesses. 18 U.S.C. §§ 4246(a), 4247(d). 

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The district court is authorized to “order that a psychiatric or psychological 

examination of the defendant be conducted.” Curbow, 16 F.4th at 97. A report of that 

examination is then filed in accordance with the provisions of § 4247(b) and (c). Id. Section

4247(b) permits the defendant to select an additional examiner of her choosing. And

§ 4247(c) sets forth a nonexclusive list of background and diagnostic findings to be 

addressed in the report. These include (1) the subject’s history and present symptoms, (2) 

the tests administered and the results obtained, (3) the findings, and (4) the diagnosis, 

prognosis, and the central opinion respecting whether the subject is dangerous as defined 

in the statute. 18 U.S.C. § 4247(c)(1)-(4).

Following receipt of the examination report(s), the hearing convenes. Subsections 

(d) and (e) of § 4246 respectively set forth (1) the process for adjudicating and placing the 

subject, if warranted, and (2) later discharging him from custody. Section 4246(d) provides 

as follows:

If, after the hearing, the court finds by clear and convincing evidence that the 

person is presently suffering from a mental disease or defect as a result of 

which his release would create a substantial risk of bodily injury to another 

person or serious damage to property of another, the court shall commit the 

person to the custody of the Attorney General [(“the dangerousness 

adjudication”)]. 

18 U.S.C. § 4246(d) (emphasis added). The initial dangerousness adjudication is thus 

subject to the clear and convincing proof standard. 

Section 4246(e) governs the potential discharge of the individual earlier committed 

under § 4246(d). The provision states pertinently as follows:

(e) Discharge.--When the director of the facility in which a person is 

hospitalized pursuant to subsection (d) determines that the person has 

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recovered from his mental disease or defect to such an extent that his release 

would no longer create a substantial risk of bodily injury to another person 

or serious damage to property of another, he shall promptly file a certificate 

to that effect with the clerk of the court that ordered the commitment. The 

clerk shall send a copy of the certificate to the person’s counsel and to the 

attorney for the Government. The court shall order the discharge of the 

person or, on the motion of the attorney for the Government or on its own 

motion, shall hold a hearing, conducted pursuant to the provisions of section 

4247(d), to determine whether he should be released. If, after the hearing, the 

court finds by a preponderance of the evidence that the person has recovered 

from his mental disease or defect [(“the recovery adjudication”)] to such an 

extent that--

(1) his release would no longer create a substantial risk of bodily 

injury to another person or serious damage to property of another, 

the court shall order that he be immediately discharged; or

(2) his conditional release under a prescribed regimen of medical, 

psychiatric, or psychological care or treatment would no longer 

create a substantial risk of bodily injury to another person or serious 

damage to property of another, the court shall--

(A) order that he be conditionally discharged under a 

prescribed regimen of medical, psychiatric, or psychological 

care or treatment that has been prepared for him, that has been 

certified to the court as appropriate by the director of the 

facility in which he is committed, and that has been found by 

the court to be appropriate; and

(B) order, as an explicit condition of release, that he comply 

with the prescribed regimen of medical, psychiatric, or 

psychological care or treatment.

The court at any time may, after a hearing employing the same criteria, 

modify or eliminate the regimen of medical, psychiatric, or psychological 

care or treatment.

18 U.S.C. § 4246(e). The recovery adjudication is thus subject to a preponderance of the 

evidence standard.

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The next step -- and the subsection at the center of this appeal -- is found in § 4246(f) 

dealing with “[r]evocation of conditional discharge.” The subsection provides as follows:

(f) Revocation of conditional discharge.--The director of a medical facility 

responsible for administering a regimen imposed on a person conditionally 

discharged under subsection (e) shall notify the Attorney General and the 

court having jurisdiction over the person of any failure of the person to 

comply with the regimen. Upon such notice, or upon other probable cause to 

believe that the person has failed to comply with the prescribed regimen of 

medical, psychiatric, or psychological care or treatment, the person may be 

arrested, and, upon arrest, shall be taken without unnecessary delay before 

the court having jurisdiction over him. The court shall, after a hearing, 

determine whether the person should be remanded to a suitable facility on 

the ground that, in light of his failure to comply with the prescribed regimen 

of medical, psychiatric, or psychological care or treatment, his continued 

release would create a substantial risk of bodily injury to another person or 

serious damage to property of another [(“the revocation adjudication”)].

18 U.S.C.A. § 4246(f).2 The revocation adjudication mentions no proof standard, unlike 

subjections 4246(d) and 4246(e) immediately preceding it. 

IV.

Before proceeding to the analysis, we deem it useful to provide some context. There 

is a considerable history giving rise to the current federal civil commitment process. Some 

of it is important for resolving both questions before us.

A. The Origins of Offender Mental Health Treatment in the United States

In 1773 -- in part to stem then-inexplicable, and even criminal, behavior by some -

- the first facility for the mentally ill opened in Williamsburg, Virginia. The Public Hospital 

2 Section 4246(f) is materially identical to 18 U.S.C. § 4243(g), a provision dealing 

with revocation of conditional discharge for hospitalized persons found not guilty by 

reason of insanity. 

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for Persons of Insane and Disordered Minds3 (“Public Hospital”) was -- as put by the Earl 

of Dunmore, then-colonial Governor of Virginia -- devoted to “‘a poor unhappy set of 

people who are deprived of their senses and wander about the countryside, terrifying the 

rest of their fellow creatures.’” Michael Toren, Shuttered: An Examination of How the 2013 

Chicago Public School Closings Are Denying Special Education Students the Right to an 

Appropriate Public Education, 35 N. Ill. U. L. Rev. 231, 235 (2014) (citation omitted); see 

Paul S. Appelbaum, A History of Civil Commitment and Related Reforms in the United 

States: Lessons for Today, 25 Dev. Mental Health L. 13, 13 (2006) (“By the end of the 

Colonial Period and into the early years of the Republic, jails and almshouses were filled 

with people with mental illness.”).

The only facility of its kind until 1824, the Public Hospital consisted of “dungeonlike cells” and “torturous . . . treatment.” Toren, supra, at 235. The Public Hospital and its 

methods -- with the comparatively brief, humanitarian interregnum represented by 

Benjamin Rush’s “Moral Treatment” movement -- were the standard fare through the mid1800s. Id. (noting that after the Civil War “Patient care reverted to pre-Revolutionary War 

3 The use of the word “insane” and similar pejorative references is understandably 

discouraged. See, e.g., AP Style Book (“Do not use derogatory terms, such as insane, 

crazy/crazed, nuts or deranged, unless they are part of a quotation that is essential to the 

story.”). We regret the necessity of resurfacing these justifiably long-abandoned,

objectionable terms. It is necessary, in part, however, to demonstrate that as the science 

related to the subject conditions has matured, so too hopefully has the surrounding rhetoric 

and perception. It is also necessary to aid an appreciation of sociolegal developments and 

the statutory context. We have confronted similar concerns about outmoded parlance 

recently. See Miranda v. Garland, 34 F.4th 338, 345 n.1 (4th Cir. 2022) (“Our use of the 

term ‘alien’ is not intended to express any opinion, pejorative or otherwise, about the 

plaintiffs in this action or others challenging their detention under our immigration laws.”). 

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conditions”); Stacey A. Tovino, Psychiatric Restraint and Seclusion: Resisting Legislative 

Solution, 47 Santa Clara L. Rev. 511, 520 (2007); Destiny Howell, The Unintended 

Consequences of Deinstitutionalization, 54 Am. Crim. L. Rev. Online 17, 18 (2017).

In 1841, however, the legendary Dorothea Dix “began a crusade to reform the 

treatment of mentally ill inmates after witnessing firsthand the abhorrent care those 

individuals received.” Robert Rigg, Are There No Prisons: Mental Health and the Criminal 

Justice System in the United States, 4 U. Denv. Crim. L. Rev. 103, 103–04 (2014). By 

1880, Ms. Dix had proven instrumental in establishing “32 mental hospitals” in various 

states, a near ten-fold increase in such facilities existing when her work commenced. Id. at

104; see Adam Klein & Benjamin Wittes, Preventive Detention in American Theory and 

Practice, 2 Harv. Nat’l Sec. J. 85, 158 (2011) (“The ensuing conclusion that confinement 

in newly constructed asylums would be a salutary policy benefiting the mentally ill was 

propagated by, among others, the humanitarian campaigner Dorothea Dix.”); Death of 

Dorothea Dix, Biddeford Daily J., July 20, 1887, at 1 (noting “[s]he was instrumental in 

having the asylum founded . . . throughout the country. . . . [and] in 1854 a bill was passed 

granting 10,000,000 acres for the purpose but the measure was vetoed by President 

Pierce.”); Reuben L. Lurie, Massachusetts Commissioner of Corrections, Diamond Jubilee 

Meeting of the American Bar Association at the Harvard Club of Boston, Today’s 

Problems in the Administration of Criminal Justice, 15 F.R.D. 65, 80 (Aug. 26, 1953)

(“The result was that there was a reform in the treatment not alone of prisoners, but also of 

the insane in Massachusetts, and then Dorothea Dix began the same trek. She went into 

Rhode Island. She went into New York. She went into New Jersey, and finally she had 

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traversed twenty-two states in the Union. She memorialized the Congress. She went to 

Europe. She brought about lasting reforms in England, in France, in Italy, in Turkey, and 

in Russia.”).

4

Ultimately, however, the well-intended asylum facilities became overcrowded and 

inadequately funded; they too soon began to resemble a more modernized version of the 

pre-Revolutionary War conditions instead of the therapeutic sanctuaries envisioned by Ms. 

Dix and her devotees. See Howell, supra, at 18–19 (“Asylums workers had less time to 

attend to individual patients and the facilities required more upkeep. . . . From the 1900’s

to the 1940’s, forced sterilization, lobotomization, and electroshock therapy all emerged as 

acceptable treatment options for the mentally ill.”). Additionally, “[t]he inpatient 

population of mental hospitals in the United States grew from 187,000 in 1910 to 425,000 

in 1940, demonstrating the ‘pervasive . . . faith in an institutional policy’ of mental illness 

control.” See Klein & Wittes, supra, at 160 (quoting Gerald N. Grob, The Mad Among Us: 

A History of the Care of America’s Mentally Ill 167 (1994)).

B. Deinstitutionalization and Congressional Action After World War II

4 Ms. Dix’s desire for a federal facility for mentally ill inmates ultimately 

materialized with an Act of Congress in 1930. The law authorized the Attorney General, 

inter alia, to select a site and report to Congress the cost of acquisition or construction. An 

Act To Establish a Hospital for Defective Delinquents (“Hospital Act”), ch. 254, 46 Stat. 

270 (1930) (codified as amended at 18 U.S.C. §§ 871–880 in United States House of 

Representatives, Committee on Revision of the Laws, The Code of the Laws of the United 

States of America (1933)). As authorized by the Hospital Act, the United States Medical 

Center for Federal Prisoners (“MCFP”) was constructed in the early 1930s on land donated 

by Springfield, Missouri. As noted within, the facility remains in service as MCFP 

Springfield. Springfield-Greene County Library District, Historical Postcards of 

Springfield, Missouri (Feb. 6, 2022), https://thelibrary.org/lochist/postcards/index.cfm. 

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In the years following World War II, the Nation began to reckon with the troubling 

civil commitment process. Pop culture helped produce the tipping point. A 1946 book 

entitled The Snake Pit by Mary Jane Ward and Albert Deutsch’s watershed work The 

Shame of the States were “cultural touchstones” painting exceptionally dark portraits of 

institutionalization. Blake Erickson, Deinstitutionalization Through Optimism: The 

Community Mental Health Act of 1963, 16 Am. J. of Psych. Residents’ J. 6, 6 (2021). 

Perhaps the most influential and far-reaching piece was a 1946 article in Life magazine --

the most widely read news periodical of the day -- which said this: “mental institutions in 

almost every state . . . . [t]hrough public neglect and legislative penny-pinching, . . . ha[ve]

allowed . . . [their] institutions for the care and cure of the mentally sick to degenerate” to 

deplorable levels. Albert Q. Maisel, Bedlam 1946: Most U.S. Mental Hospitals Are a 

Shame and a Disgrace, Life, May 6, 1946, at 102. 

This intense scrutiny produced seismic developments and resulted in an increasingly 

rapid movement toward “deinstitutionalization”:

5

These revelations shocked the public and undermined confidence in asylums. 

The passage of the 1963 federal Community Mental Health Centers Act, 

which funded outpatient treatment, the deinstitutionalization movement, and 

the development of psychotropic medications all reduced the inpatient 

population in mental hospitals and shifted public policy away from confining 

those who could be safely treated in freedom.

5 “Deinstitutionalization refers to the set of policies and treatment innovations 

driving the half-million-person decrease in the mental hospital population between 1955

and the present.” Steven Raphael & Michael A. Stoll, Assessing the Contribution of the 

Deinstitutionalization of the Mentally Ill to Growth in the U.S. Incarceration Rate, 42 J. 

Legal Studs. 187, 190 (2013).

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Klein & Wittes, supra, at 160.6

The federal sovereign was at the tip of the spear respecting progress toward civil 

commitment reform and deinstitutionalization. For example, in 1946 President Harry 

Truman signed the National Mental Health Act (“NMHA”), Pub. L. No. 79-487, 60 Stat. 

421 (1946). The social context for, and contents of, the NMHA are discussed in a thencontemporary piece from the Yale Law Journal:

INCREASING psychiatric understanding of the nature of mental disease has 

brought to light the vast scope of the mental health problem. Mental patients 

now occupy over one half of the hospital beds in the country. In addition to 

about 600,000 institutionalized cases, it is estimated that at least 8,000,000 

of our population suffer from some sort of mental disease. Total annual cost 

of mental illness, including loss in earning power, amounts to over a billion 

dollars a year. Pointing up sharply the extent of the drain on national 

resources by mental disease is the fact that neuropsychiatric disorder was the 

largest single cause of draft rejections and the cause of forty-one percent of 

all Army medical discharges.

The critical nature of the problem suggested by these statistics has been 

recognized by the unanimous passage of the [NMHA] on July 3, 1946. This 

Act gives authority to the Public Health Service to extend its administration 

of research, grants-in-aid and fellowships to the field of mental illness and 

authorizes the establishment of a National Institute of Mental Health along 

the lines of the National Cancer Institute. It is expected, however, that only 

those mental patients treated by personnel connected with teaching and 

research projects will be affected by federal expenditures. Mental health 

administration is primarily a state responsibility, and the legal procedure 

involved in the commitment and release of mental patients is, therefore, a 

subject of state legislation.

6 Psychotropic medications contributed heavily to deinstitutionalization. E. Fuller 

Torrey, Out of the Shadows: Confronting America's Mental Illness Crisis loc. 141 (1997) 

(ebook) (“Deinstitutionalization began in 1955 with the widespread introduction of 

chlorpromazine, commonly known as Thorazine, the first effective antipsychotic 

medication, and received a major impetus 10 years later with the enactment of federal 

Medicaid and Medicare.”).

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Note, Analysis of Legal and Medical Considerations in Commitment of the Mentally Ill, 

56 Yale L.J. 1178, 1178–80 (1947).

C. The Judiciary’s Role in Modernizing Federal Offender Civil Commitment

The Judiciary was likewise poised for action during this period. And its efforts 

represented the first steps toward the statutory civil commitment scheme now found in 

Chapter 313 of Title 18. On September 29, 1942, the Judicial Conference of the United 

States (“Conference”) convened. Judicial Conference, Report of the Proceedings of the 

Judicial Conference of the United States 1 (Sept. 29, 1942) (“1942 Report”). The 

Conference “authorized the Chief Justice to appoint a committee to study, in cooperation 

with the Attorney General, the treatment accorded by the federal courts to insane persons 

charged with crime.” Id. at 18. The “Committee of the Conference on the Treatment of 

Insane Persons Charged with Crime in the Federal Courts” (“Committee”) was formed two 

years later. Judicial Conference, Report of the Proceedings of the Judicial Conference of 

the United States 3 (Sept. 26, 1944) (“1944 Report”). The Committee membership included 

the Honorable Learned Hand, then serving as a Senior Circuit Judge on the United States 

Court of Appeals for the Second Circuit. 1942 Report at 19. 

At the Judicial Conference’s September 28, 1943, meeting, the Attorney General 

noted the continuing importance of the Committee’s work, emphasizing “that of 4,600 

persons convicted under the Selective Training and Service Act[,] 200 were found to be of 

unsound mind.” Judicial Conference, Report of the Proceedings of the Judicial Conference 

of the United States 3 (Sept. 28, 1943) (“1943 Report”). He further “emphasized the 

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desirability of probation officers giving careful attention to the defendant’s mental 

condition.” Id.

In 1944, the Committee submitted an interim report, of which the Attorney General 

“expressed general approval.” 1944 Report at 3. In response, at its September 26, 1944, 

meeting, the Judicial Conference adopted the following resolution:

It appearing from a study by the Bureau of Prisons that a considerable 

number of persons are being sentenced for federal offenses and sent to prison 

who, because of their insanity, should not have been convicted, and who, 

indeed, because of their mental incapacity to participate rationally in their 

defense, should never have been arraigned or brought to trial, Resolved, that 

the Conference recommend:

(1) That the district courts make fuller use of the sum provided in the 

annual appropriation for psychiatric examinations in occasional 

criminal cases at the instance of the court, for the purpose of 

procuring a competent and impartial psychiatric examination of 

accused persons brought before the court, where from the report of 

the probation officer or from other indications there is reason to 

believe that the accused may be mentally unsound;

(2) That wherever possible, arrangements should be made with 

suitable local hospitals and other institutions and agencies whereby 

in the discretion of the district courts persons charged with crime 

may be sent temporarily to such institutions for observation and 

examination as to their mental condition, as is now done in some 

districts; and further that the Administrative Office be requested to 

survey the possibilities of this procedure in the various districts, and 

if agreeable to the respective district courts to arrange with the 

officials of local institutions for the use of their facilities for the 

examination of the mental soundness of persons charged with crime; 

that for this purpose the Administrative Office be authorized to use 

the services of the probation officers of the various districts.

Id. at 18. The Conference focused the continued work of the Committee on the following: 

“(1) psychiatric examinations as a matter of course in a class of cases, to be determined, in 

which the offenders are most apt to be insane; (2) a procedure in other cases for determining 

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before trial the sanity of an accused person; and (3) the protection of courts from insane 

litigants and a suitable procedure for dealing with such persons.” Id. at 19.

In 1945, the Attorney General reported to the Conference that “legislation for 

dealing with mentally afflicted defendants in criminal cases was in the process of

preparation in cooperation with the committee of the Judicial Conference on the Treatment 

of Insane Persons Charged with Crime in the Federal Courts.” Judicial Conference, Report 

of the Proceedings of the Judicial Conference of the United States 3 (Sept. 25, 1945) (“1945

Report”). At that same meeting, the Committee submitted, and the Conference approved, 

its report on the subject assigned:

The committee presented a revised draft of a bill, prepared in 1944, dealing 

with cases where insanity occurs after conviction, and with cases of insane 

persons whose sentences have expired. But the committee did not give its 

final approval to the draft in its present form, suggesting that it be circulated 

among the circuit and district judges so that their suggestions may be 

considered. The bill . . . provides a procedure for . . . where mental 

incompetency becomes apparent after the defendant has been committed to 

prison. Further, the bill makes provision for the commitment of any insane 

prisoner whose sentence is about to expire and whose release might endanger 

‘the safety of the officers, currency, domain or other interests of the United 

States.’ 

Id. at 19.

In 1946, the Committee produced draft legislation. On October 1, 1946, the 

Conference approved it, with certain amendments, and produced the draft of a bill that 

provided “for the commitment to the Attorney General, upon a judicial proceeding and 

after a hearing, of any insane prisoner whose sentence is about to expire and whose release 

might endanger the safety of the officers, the property, or other interests of the United 

States.” Judicial Conference, Report of the Proceedings of the Judicial Conference of the 

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United States 18 (Oct. 1, 1946) (“1946 Report”). On September 25, 1947, the Conference 

“reaffirmed” its recommendation of the draft legislation to Congress. Judicial Conference, 

Report of the Proceedings of the Judicial Conference of the United States 18 (Sept. 25, 

1947) (“1947 Report”).

Reform came in two separate enactments occurring in 1948 (“1948 Enactment”) 

and 1949 (“1949 Enactment”). The 1948 Enactment was codified at Sections 4241 through 

4243. Pub. L. No. 80-772, 62 Stat. 855 (1948) (codified as amended at 18 U.S.C. §§ 4241-

4243).

7 These sections provided respectively for (1) a board of examiners at each federal 

correctional institution to examine mentally ill inmates and report them to the Attorney 

General, who was then authorized to remove the inmate to a federal mental hospital

(§ 4241), (2) transfer of recovered hospitalized inmates to a federal correctional institution 

following their recovery (§ 4242), and (3) transfer of non-recovered, released inmates from 

the federal hospital to “the proper authorities” where the inmate resided (§ 4243). This 

theme of desired state involvement permeates the history of -- and current law governing -

- federal civil commitment.

The 1949 Enactment consisted of five sections contained in the Conference’s draft

legislation -- sections 4244 through 4248 -- which failed initially to secure Congressional 

approval. In September 1948, the Attorney General explained as follows:

I was disappointed, as I know you were, because of the failure of enactment 

of the bill to provide for the care and custody of insane persons charged with 

7 As explained within, the codified §§ 4241 through 4248 correspond numerically, 

but not substantively, with their amended versions that followed decades later and remain 

in force presently.

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or convicted of offenses against the United States. The Department of Justice 

has worked in close harmony with Judge [Calvert] Magruder and other 

members of his committee in behalf of this much needed legislation. The bill 

was actually passed by the Senate on June 10, 1948, and was referred to the 

Judiciary Committee of the House on the following day. It made no further 

progress toward enactment, however. Recommendations should be renewed 

at the next session of Congress for the speedy enactment of this bill.

Judicial Conference, Report of the Proceedings of the Judicial Conference of the United 

States 13 (Sept. 27, 1948) (“1948 Report”). The Judicial Conference again “reaffirmed its 

interest in [the] legislation . . . and approved the bill which passed the Senate (S. 850) on 

June 10, 1948.” Id. at 41.

On September 7, 1949, Congress passed the 1949 Enactment. Pub. L. No. 81-285, 

63 Stat. 686 (1949) (codified as amended at 18 U.S.C. § 4244-4248). The 1949 Enactment 

thus added §§ 4244 through 4248 to §§ 4241 through 4243 resulting from the 1948 Act.

The material portions of §§ 4246, 4247 and 4248 -- the root system from which the 

current § 4246 sprung -- are set out below:

[Former 18 U.S.C. § 4246] Whenever the trial court shall determine in 

accordance with sections 4244 and 4245 of this title that an accused is or was 

mentally incompetent, the court may commit the accused to the custody of 

the Attorney General or his authorized representative, until the accused shall 

be mentally competent to stand trial or until the pending charges against him 

are disposed of according to law. And if the court after hearing as provided 

in the preceding sections 4244 and 4245 shall determine that the conditions 

specified in the following section 4247 exist, the commitment shall be 

governed by section 4248 as herein provided.

[Former 18 U.S.C. § 4247] Whenever the Director of the Bureau of Prisons 

shall certify that a prisoner whose sentence is about to expire has been 

examined by the board of examiners referred to in title 18, United States 

Code, section 4241, and that in the judgment of the Director and the board of 

examiners the prisoner is insane or mentally incompetent, and that if released 

he will probably endanger the safety of the officers, the property, or other 

interests of the United States, and that suitable arrangements for the custody 

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and care of the prisoner are not otherwise available, the Attorney General 

shall transmit the certificate to the clerk of the court for the district in which 

the prisoner is confined. Whereupon the court shall cause the prisoner to be 

examined by a qualified psychiatrist designated by the court and one selected 

by the prisoner, and shall, after notice, hold a hearing to determine whether 

the conditions specified above exist. At such hearing the designated 

psychiatrist or psychiatrists shall submit his or their reports, and the report of 

the board of examiners and other institutional records relating to the 

prisoner’s mental condition shall be admissible in evidence. All of the 

psychiatrists and members of the board who have examined the prisoner may 

be called as witnesses, and be available for further questioning by the court 

and cross-examination by the prisoner or on behalf of the Government. At 

such hearing the court may in its discretion call any other witnesses for the 

prisoner. If upon such hearing the court shall determine that the conditions 

specified above exist, the court may commit the prisoner to the custody of 

the Attorney General, or his authorized representative.

[Former 18 U.S.C. § 4248] Whenever a person shall be committed pursuant 

to section 4247 of this title [addressing the situation of an inmate whose 

sentence was nearly expired], his commitment shall run until the sanity or 

mental competency of the person shall be restored or until the mental 

condition of the person is so improved that if he be released he will not 

endanger the safety of the officers, the property, or other interests of the 

United States, or until suitable arrangements have been made for the custody

and care of the prisoner by the State of his residence, whichever event shall 

first occur. Whereupon the Attorney General or his authorized representative 

shall file with the court which made said commitment a certificate stating the 

termination of the commitment and the ground therefor . . . . The Attorney 

General or his authorized representative shall have authority at any time to 

transfer a prisoner committed to his custody under the authority of section 

4246 or section 4247 hereof to the proper authorities of the State of his 

residence.

D. Transinstitutionalization, the Shift to Dangerousness as the Criterion for

Commitment and the Beginnings of Federal Civil Commitment Reform

Following the federal lead represented by the NMHA, and later the 1963 

Community Mental Health Act, Pub. L. No. 88-164, 77 Stat. 282 (1963), “most states 

changed their involuntary-commitment statutes to require that an individual be a danger to 

him or herself and/or to others, with varying evidentiary requirements, rendering 

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involuntary commitment considerably more difficult.” Steven Raphael & Michael A. Stoll, 

Assessing the Contribution of the Deinstitutionalization of the Mentally Ill to Growth in 

the U.S. Incarceration Rate, 42 J. Legal Studs. 187, 191 (2013) (citations omitted). A

troubling phenomenon developed in the decades that followed. Incarceration rates for the 

mentally ill increased markedly:

Many factors have contributed to the modern mass incarceration of people 

with mental illness. A leading explanation is “transinstitutionalization”: the 

downsizing and closure of state mental hospitals known as 

deinstitutionalization, coupled with patient reinstitutionalization in jails and 

prisons--in other words, shifting the mentally ill from one institution to 

another. There is clearly some truth to this explanation.

Fredrick E. Vars & Shelby B. Calambokidis, From Hospitals to Prisons: A New

Explanation, 102 Cornell L. Rev. Online 101, 103–04 (2017); see Paul F. Stavis, Why

Prisons Are Brim-Full of the Mentally Ill: Is Their Incarceration a Solution or a Sign of 

Failure?, 11 Geo. Mason U. Civ. Rts. L.J. 157, 157–58 (2000) (“During the last half of the 

twentieth century their essential needs for care and treatment have been deficient or in 

many cases, totally ignored. In this sense, ‘transinstitutionalization’ has become the 

inevitable subsequent phase of forty years of a policy known as ‘deinstitutionalization,’ 

i.e., the massive, nationwide closing of psychiatric hospitals and discharging of their 

patients. The apparent inverse relationship between the availability of hospital treatment 

and the increasing population of mentally ill prisoners was noticed more than a half century 

ago.”).

State mental institutions experienced a 71 percent decrease in patient population 

from 1965 to 1980. Joseph P. Morrissey & Howard H. Goldman, Care and Treatment of 

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the Mentally Ill in the United States: Historical Developments and Reforms, 484 Annals of 

the American Academy of Political and Social Science 12, 22 (1986). The authors 

additionally observed as follows:

Tens of thousands ended up in rooming houses, foster homes, nursing homes, 

run-down hotels, and on the streets. The transfer of patients from the “back 

wards to the back alleys” led to widespread concerns that 

deinstitutionalization was a disaster and that the states had abdicated their 

responsibilities to the mentally ill.

Id.

These conditions may have been a catalyst for the eventual Congressional reform of

the federal civil commitment process beginning in the 1970s and culminating in the 

enactment of the Comprehensive Crime Control Act of 1984. Pub. L. 98–473, 98 Stat. 1976

(Oct. 12, 1984) (“the 1984 CCCA”). As discussed within, the 1984 CCCA amended the 

1948 and 1949 Enactments to (1) more fully address federal inmates afflicted with a mental 

illness and, for the first time, (2) create a process for their conditional discharge, outpatient 

treatment, monitoring, and potential re-institutionalization. 

E. Modernization of the Federal Civil Commitment Process from 1965 to 1983

and the 1984 CCCA 

The roots of the 1984 CCCA reach deep.

8 The 22-year saga leading to enactment 

began in 1966, when President Lyndon B. Johnson urged Congress to create a commission 

8 Much of the historical discussion that follows covers proceedings in the Senate 

leading to the 1984 CCCA. One author observes as follows: 

The [federal criminal] code reform movement did not receive the same 

degree of attention in the House of Representatives . . . [as] in the Senate. . . 

. The House Judiciary Committee had . . . less staff support . . . , more of an 

(Continued)

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to “modernize our criminal laws.” Message from the President, 112 Cong. Rec. 5368, 5370 

(1966). Congress acted swiftly, creating the National Commission on Reform of Criminal 

Laws (“Reform Commission”). An Act to Establish a National Commission on Reform of 

Federal Criminal Laws, Pub. L. No. 89-801, 80 Stat. 1516 (1966). Prior to the Reform 

Commission completing its work, the legislative foundations were already being laid for 

the 1984 CCCA with a three-page, January 16, 1969, proposal introduced by Senator 

Robert C. Byrd to deny bail to certain individuals charged with crimes of violence. S. 289, 

91st Cong. (1969). 

The first appearance of significant, proposed amendments to 18 U.S.C. §§ 4241

through 4248 came from Senators John McClellan, Sam Ervin, and Roman Hruska. S.1, 

93rd Cong. (1973). Senate Bill 1 arrived on the heels of the study and hearings following

the Reform Commission’s 1971 report. The measure was the first effort to develop a 

modern federal civil commitment process for mentally ill inmates.

arms-length relationship with the [DOJ], . . . and . . . a recent history of 

following, rather than preceding, the Senate on criminal justice initiatives.

Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev. 

45, 124 (1998). Mr. Gainer was well positioned in the criminal code reform process. His 

article has been widely cited over the decades. See, e.g., Jessica A. Roth, Rehaif v. United 

States: Once Again, A Gun Case Makes Surprising Law, 32 Fed. Sent. R. 23, 25 n.38 

(2019); Kathleen F. Brickey, Federal Criminal Code Reform: Hidden Costs, Illusory 

Benefits, 2 Buff. Crim. L. Rev. 161, 189 (1998) (noting Mr. Gainer was “a senior official 

in the [DOJ] for many years [between 1963 to 1989], was heavily involved in criminal law 

reform and supervised the Department’s effort to have a new federal criminal code 

enacted”).

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Missing from those proposed amendments, however, was the conditional discharge 

and revocation process now found in 18 U.S.C. § 4146(e) and (f). The prospect of 

“probation” for mentally ill inmates first appeared in a later bill introduced by Senators 

McClellan and Hruska. S. 1400, 93rd Cong. § 4224(e) (1973). The alternative sentence 

would have been available to the district court for individuals who developed a mental 

illness following their conviction and imprisonment in a federal correctional institution. Id.

(providing that when a hospitalized and convicted defendant recovered from his mental 

illness, the district court would hold a hearing to determine whether the defendant’s term 

of imprisonment should be reduced or, among other options, result in the defendant being 

placed “on probation pursuant to” the Bill’s chapter dealing with a sentence of probation 

generally).

The magnitude of the wholesale criminal code reform, along with the Watergate 

controversy, slowed the legislative process throughout the mid-1970s. See generally

Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev. 

45, 114 (1998) (“The Watergate issues diverted so much attention from the code reform 

effort, as well as from other subjects, that they eventually mooted ongoing consideration 

of the code.”). 

Later in the 1970s, however, a comprehensive reconstruction of the federal criminal 

code, and civil commitment reform, again gained steam. And toward the end of the decade, 

the conditional discharge and discharge scheme took shape, albeit from a very unlikely 

source, and in a very unlikely way. In sum, the process found its genesis and development 

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not in a congressional study, commission, or testimony by correctional or mental health 

experts; it was instead spearheaded by a single concerned and aggrieved citizen.

In May 1978, R. Dennis Bevans’ brother James “was forced off the road and 

murdered brutally by a person who had been a mental patient in two facilities . . . and had 

. . . a history of mental problems.” Reform of the Federal Criminal Laws: Hearings on S. 

1722 and S. 1723 Before the S. Comm. on the Judiciary, 96th Cong. 10057-58 (1979) 

(statement of R. Dennis Bevans). Mr. Bevans was determined to push reforms that would 

forestall a recurrence of the tragedy his family suffered. 

He became acquainted in early 1979 with a woman who lived down the hall in his 

apartment building. She worked for Senator Theodore “Ted” Kennedy, then-Chairman of 

the Senate Committee on the Judiciary (“Judiciary Committee”). R. Dennis Bevans, Fast 

Track Bureaucrat 371 (2008). The acquaintance told Mr. Bevans whom he should contact 

in Senator Kennedy’s office. Id. On February 1, 1979, Mr. Bevans wrote Senator Kennedy 

and described the tragic May 9, 1978, event involving his brother. Reform of the Federal 

Criminal Laws: Hearings on S. 1722 and S. 1723 Before the S. Comm. on the Judiciary, 

96th Cong. 10067-68 (1979) (letter from R. Dennis Bevans to Hon. Edward M. Kennedy). 

The perpetrator, Gerald Fox, had been previously hospitalized pending his competency 

restoration. Id. at 10067. He was ultimately deemed not criminally responsible in view of 

his mental illness. Id.

While remarkably sympathetic to Mr. Fox’s condition, Mr. Bevans simultaneously 

decried the fact that no “[p]ost release supervision” existed in federal law for individuals 

like Mr. Fox. Id. He noted additionally in the letter:

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[Mr.] Fox had been diagnosed as a paranoid schizophrenic with homicidal 

and suicidal tendencies . . . and had been institutionalized twice. Only two 

months prior to the murder of my brother, he had left a mental institution, 

promising to take the tranquilizing drugs that keep his condition stable. 

Instead, he promptly discontinued taking the drugs, and his condition 

progressively worsened. The evening before the murder (May 8, 1978), he 

blew a hole in the wall of his apartment with a shotgun--but no one was 

around to report it. Obviously, if Fox had been required to report regularly 

for observation (under penalty of being picked up by the police and returned 

to the institution) my brother would still be alive, and his three children 

would have their father.

Id. at 10067-68. 

Months later, on September 9, 1979, Senators Kennedy, Strom Thurmond, Orrin 

Hatch, Dennis DeConcini, and Alan Simpson introduced Senate Bill 1722, entitled the 

“Criminal Code Reform Act of 1979” (“1979 CCCA”). The 1979 CCCA contained 

provisions materially identical to those in the preceding years dealing with hospitalized 

inmates due for release but suffering from a mental disease or defect. S. 1722 (Sept. 7, 

1979). When referred that same month to the Judiciary Committee, the Bill yet lacked the 

conditional discharge and revocation scheme urged by Mr. Bevans. Following his letter to 

Senator Kennedy, however, and after further explaining his viewsto a Judiciary Committee 

staff member, Mr. Bevans was scheduled to testify; remarkably, Judiciary Committee staff 

asked for his written legislative proposal. Bevans, supra, at 371. He then “decided to write 

. . . [a] version of a man from the moon draft law that simply made sense of an unreasonable, 

uncontrolled, and dangerous situation.” Id.

On September 18, 1979, approximately ten days after Senate Bill 1722 was 

introduced, Senator Thurmond, then the ranking minority member of the Judiciary 

Committee, called Mr. Bevans to testify; Committee Counsel Paul Summitt was in 

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attendance. Reform of the Federal Criminal Laws: Hearings on S. 1722 and S. 1723 Before 

the S. Comm. on the Judiciary, 96th Cong. 10057-58 (1979) (statement of R. Dennis 

Bevans). Mr. Bevans testified, in part, as follows:

I am proposing that the bill you are considering be expanded to 

provide for mandatory post-release supervision of individuals such as those 

who have murdered and then are involuntarily committed to a mental facility.

I am suggesting that in the current situation, legislation treats the topic 

of mental illness in two ways; No. 1, it provides procedurally for the person 

who is determined to have been temporarily insane and is expected to 

recover, and No. 2, for the person who is chronically mentally ill, but able to 

be discharged from a mental hospital with an adequate margin of safety for 

society, given the history of the patient and the diagnosis regarding the type 

of mental illness.

This adequate margin of safety may include the voluntary taking of

medications for emotional stability, or counseling, or both.

. . . .

What is needed is the discretion for doctors or judges to require, as a 

condition of release, that persons they consider potentially dangerous when 

not on some form of medication, counseling or both, be required to report 

routinely for the treatment they need to insure continued emotional stability.

I believe that Gerald Fox, the murderer, was sick, hallucinating, and 

socially dysfunctional when he murdered my brother. I believe in the 

procedures and the system that judged and confined him. I am alarmed and 

horrified at the system and procedures that may release him without 

supervision into our society once again someday . . . and are governing the 

release of others right now.

We, the families of the victims of violent crime, have tended to live 

quietly within society with our private thoughts, grief, and individual 

accommodation to what has happened. But, as our numbers grow, so does 

our need to speak out against a system of laws, or lack of them, that permits 

the type of horror story that we live with as a family every day.

If you permit my proposed formal language to appear in this bill, that 

will be a dramatic first step for the States to follow. Not only will it govern . 

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. . Federal crimes along these lines, but it will give the State legislators, many 

of whom I have talked to, language to deal with, and the feeling that the feds 

recognize the problem and are intending to do something about it.

Reform of the Federal Criminal Laws: Hearings on S. 1722 and S. 1723 Before the S. 

Comm. on the Judiciary, 96th Cong. 10057-58, 10061 (1979) (statement of R. Dennis 

Bevans) (emphasis added). At the conclusion of Mr. Bevans’ testimony, Senator Thurmond 

responded, “[v]ery fine” and engaged in a colloquy concluding with his statement, “I feel 

that what you have said will result in the most careful consideration and some action being 

taken.” Id.

Accompanied by an extraordinary 1,519-page Report, the Judiciary Committee 

transmitted an amended version of Senate Bill 1722 (“1980 Markup”) to the Senate on 

January 17, 1980. See, e.g., Criminal Code Reform Act of 1979, Report of the Committee 

on the Judiciary, United States Senate, S. Rep. No. 96-553 1115 (1980) (“1980 Report”).

The 1980 Markup and Report, respectively, included two matters of interest presently. 

First, the 1980 Markup added proposed subsection 3616(f) to Senate Bill 1722, the 

conditional discharge and revocation process urged by Mr. Bevans. This was the first step 

toward the conditional discharge and revocation process that emerged years later in the 

1984 CCCA and the current version of § 4246(f).9 Second, the 1980 Report dispels any 

9 The Judiciary Committee generally credited Mr. Bevans with the conditional 

discharge and revocation process that ultimately became law. 1980 Report at 1114 n. 48 

(“The provisions in this section and section 3616 to permit a court to release a person on 

condition that he conform to a prescribed regimen of medical care or treatment was 

persuasively recommended by R. Dennis Bevans whose family experienced a tragedy that 

this provision, if available in the jurisdiction in which the incident occurred, might have 

been prevented.”).

(Continued)

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notion that the proof standards (and lack thereof) in what ultimately became § 4246 were 

the product of haste or oversight. The 1980 Report demonstrates the Judiciary Committee 

focused intensely upon proof standards generally.

For example, the 1980 Report at page 1115 includes the following observation

regarding the related statutory process for hospitalization of a person acquitted by reason 

of insanity: “It should be noted that the standard used for determining recovery -- and thus 

release -- by a preponderance of the evidence -- is intentionally lower than the standard for 

commitment -- upon clear and convincing evidence.” See, e.g., Criminal Code Reform Act 

of 1979, Report of the Committee on the Judiciary United States Senate, S. Rep. No. 96-

553 1115 (1980). And in the 1980 Report at page 1123 dealing with the § 3616 (now 

§ 4246) subject of “Hospitalization of a person due for release but suffering from a mental 

disease or defect,” and the proof standards there found, the following language appears: 

“These provisions are similar to those . . . dealing with persons acquitted by reason of 

insanity, and the discussion there should be consulted here.” Id. at 1123 (emphasis added). 

The emphasized language removes any doubt respecting the Judiciary Committee’s careful 

construction of the statutory provision that became § 4246. 

Also, as discussed more fully within, the only differences between the subsection 

3616(f) added via the 1980 Markup, and the current version of § 4246(f), are (1) the 

addition of the words “psychiatric or psychological” immediately following each instance 

where the word “medical” appears, and (2) the removal of the word “serious” prior to the 

words “bodily injury.” 

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Immediately following that clarification in the 1980 Report is a brief discussion of 

the newly proposed conditional discharge process advocated by Mr. Bevans, quoting from 

his suggested language, and offering other pertinent information:

Subsection (f) provides a procedure for dealing with the situation in which 

the released person fails to comply with the prescribed regimen of medical 

care or treatment. Under this procedure the director of the medical facility 

responsible for administering the regimen imposed under subsection (e) shall 

notify the Attorney General and the court having jurisdiction over the case 

of the failure to comply with the prescribed regimen. In a procedure similar 

to revocation of probation, upon notice by the medical director or other 

probable cause to believe the person has failed to comply with the regimen, 

the person may be arrested and, upon arrest, must be brought without 

unnecessary delay before the court having jurisdiction. The court must, after

a hearing, determine whether the person should be remanded to a suitable 

facility on the ground that, in light of his failure to comply with the prescribed 

regimen of medical care or treatment, his continued release would create a 

substantial risk of serious bodily injury to another person or serious damage 

to property of another.

Id. 1123-24 (emphasis added).

The 1980 Report, like the 1980 Markup, thus makes no mention of a proof standard

governing the revocation component of the conditional discharge scheme. As indicated by 

the emphasized language immediately above, however, the Judiciary Committee compared

the contemplated conditional discharge revocation process to the then-existing procedure

for “revocation of probation.” Id. That observation is noteworthy, inasmuch as the 1980 

Markup also included § 2105 within Senate Bill 1722; § 2105 dealt with “Revocation of 

Probation.” 1980 Markup at 180. The proposed process for probation revocation also 

omitted a proof standard; that standard remains unstated in the current probation revocation 

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scheme found in 18 U.S.C. § 3565(a) and Federal Rule of Criminal Procedure 32.1.10

Additionally, § 2303 of Senate Bill 1722 dealt with another form of judicial supervision. It 

included the new option for supervised release following imprisonment. Section 2303 

provided no revocation option at all, much less a governing proof standard. At this point in 

the legislative process, then, all three proposed, major forms of judicial supervision lacked 

any proof standard for adjudicating violations of the conditions imposed. 

Despite the immense work devoted to it, Senate Bill 1722 did not receive a vote.11

Just over a year later, however, on March 30, 1981, a seismic development occurred. 

President Ronald W. Reagan was the victim of an attempted assassination by John 

10 There is another noteworthy indication in the Markup respecting the standard of 

proof for conditional discharge revocation under 4246(f). Section 3615 of Senate Bill 1722

-- dealing with hospitalization of an imprisoned person suffering from a mental disease or 

defect -- is followed immediately by the § 3616 scheme that includes revocation of 

conditional discharge. These two proposed statutes ultimately became, respectively, 18 

U.S.C. §§ 4245 and 4246. The Markup reflects the Judiciary Committee changed the 

omitted proof standard in § 3615(d) by adopting a preponderance standard: 

(d) DETERMINATION AND DISPOSITION.—If, after the hearing, the 

court is of the opinion finds by a preponderance of the evidence that the 

defendant is presently suffering from a mental disease or defect for the 

treatment of which he is in need of custody for care or treatment in a suitable 

facility, the court shall commit the defendant to the custody of the Attorney 

General. 

S. 1722 (Jan. 17, 1980) (emphasis added). As noted, however, it recommended no similar 

alterations in § 3616. This is one more indication the absence of a proof standard in 

§ 4246(f) was not the product of oversight. 

11 The proposed criminal code reform legislation thus went the way of its 

predecessor and successor bills until 1983. See 119 Cong. Rec. 989-1018 (1973); 121 

Cong. Rec. 121, 215-20 (1975); 123 Cong. Rec. 13059, 13061 (1977); 127 Cong. Rec. 

29025 (1981). 

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Hinckley, Jr., who was ultimately found not guilty by reason of insanity. The verdict 

produced “stunned surprise” and a “cascade of public outrage.” Russell D. Covey, Criminal 

Madness: Cultural Iconography and Insanity, 61 Stan. L. Rev. 1375, 1418 n.20 (2009)

(quoting Richard J. Bonnie et al., A Case Study in the Insanity Defense: The Trial of John 

W. Hinckley, Jr., 121 (3d ed. 2008) (quoting Stuart Taylor, Jr., The Hinckley Riddle, N.Y. 

Times, June 24, 1982, at D21)).

The Honorable Barrington D. Parker presided at Mr. Hinckley’s trial. He observed 

the unprecedented impact of the attempted assassination and the verdict that followed:

After several days of careful deliberation, the jurors concluded that 

they had a reasonable doubt as to Hinckley’s mental state at the time of the 

assassination attempt; therefore, he should not be held criminally responsible 

for the crimes charged in the indictment.

In view of the public outrage over the verdict, together with the 

charged political and social climate of the time, it was not surprising that the 

insanity plea was the immediate target of relentless attacks from all sources. 

For many, the defense was a clear manifestation of the failure of our criminal 

justice system to punish individuals who clearly violated the law.

In the wake of Hinckley, the Senate and House Judiciary Committees 

of the Congress scheduled hearings and considered weeks of diverse 

testimony from highly qualified experts with varied experiences. 

See Rita J. Simon & David E. Aaronson, The Insanity Defense: A Critical Assessment of 

Law and Policy in the Post-Hinckley Era viii (1988). 

The attempted assassination and disposition provided the necessary catalyst for a 

historic reform of the federal criminal code, with particular attention to how the federal 

sovereign would treat the intersection between mental illness and criminal misconduct.

Monica Trucco, Juvenile Justice? Federal Involuntary Commitment and the Underlying 

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Policy: A Case Comment on United States v. S.A., 26 New Eng. J. on Crim. & Civ. 

Confinement 193, 205 (2000) (“The principal reason for the reformation of the federal law

dealing with mental illness was the 1981 attempted assassination of President Ronald 

Reagan by John Hinckley.”).

On January 26, 1983, just months following the June 21, 1982, Hinckley verdict, 

Senator Thurmond addressed his colleagues on the Senate floor: “Mr. President, today I 

am introducing a bill to define the affirmative defense of insanity and to establish uniform 

and comprehensive procedures for the civil commitment of Federal offenders suffering 

from a mental disease or defect.” 129 Cong. Rec. 661 (daily ed. Jan. 26, 1983) (emphasis 

added) (statement of Senator Strom Thurmond). Senator Thurmond simultaneously added 

to the record a “Section-by-Section Analysis” of his Senate Bill 105, providing pertinently

that “[s]ubsection (f) [of the proposed 18 U.S.C. § 4246] permits revocation of a 

conditional release order if such a risk is created anew by the person’s failure to comply 

with the conditions of release.” Id. at 664. 

A few months later, on March 16, 1983, President Reagan transmitted a proposed

comprehensive criminal code reform package to Congress, placing the long-studied project 

before Congress once again. Message from the President Transmitting “A Proposal for 

Legislation Entitled the Comprehensive Crime Control Act of 1983,” H.R. Doc. No. 98-32

(1983). Senator Thurmond’s bill and President Reagan’s package resulted in Senators 

Kennedy, Thurmond, Paul Laxalt, and Joseph R. Biden, Jr., introducing a bipartisan,

omnibus anticrime package in the form of Senate Bill 1762, which was then referred to the 

Judiciary Committee. 

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Senate Bill 1762 contained most of President Reagan’s proposals and also the 

Insanity Defense Reform Act, which included the proposed § 4246 that previously was 

enumerated § 3616 in the 1980 Markup of Senate Bill 1722. Major Crime Package Cleared 

by Congress, in CQ Press Library, CQ Almanac 215 (1985), available in CQ Press Library, 

CQ Almanac, http://library.cqpress.com/cqalmanac/cqal84-1152527 (last visited Sept. 4, 

2022). Document ID: cqal84-1152527 (“Almanac”).

One commentator who has intensively studied the Senate committee process for 

decades -- focusing in particular on the period when the 1984 CCCA was enacted -- noted 

the unusual, bipartisan history surrounding criminal law reform during the period:

The version of the bill brought into markup in 1983 contained an array of 

provisions that had been before the committee in previous years, ranging 

from bail and sentencing reform to measures relating to drug penalties and 

the insanity defense. Before hearings were held, [Senator] Thurmond and 

then subcommittee chair [Senator] Paul Laxalt planned to include in the 

legislation highly controversial provisions relating to capital punishment, 

habeas corpus, and the exclusionary rule. With these items included, many 

Democrats intended to fight the legislation.

In response, [then-Senator] Biden proposed that the more controversial 

provisions be removed and considered as separate pieces of legislation. A 

Republican staffer included in the negotiations described the process.

During the hearings, [Senators] Biden and Kennedy said there 

were a lot of good parts to the bill and asked why it was 

burdened with controversial sections.

What we got was the deal that we would take out of the 

package those sections that the Democrats didn’t like and 

construct a new package, with [Senators] Thurmond, Biden, 

Laxalt, and Kennedy as cosponsors. They would . . . act in 

union. If any one of those four objected to an amendment in 

committee, all four would line up in support. It was a veto 

power.

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This alliance between [Senators] Strom Thurmond, Joseph Biden, Paul 

Laxalt, and Edward Kennedy was crucial to timely Senate action on the 

legislation . . . .

[Senators] Thurmond and Biden were able to coalesce by striking the more 

divisive provisions from the package, and uniting behind more consensual 

ones . . . .

C. Lawrence Evans, Leadership in Committee: A Comparative Analysis of Leadership 

Behavior in the U.S. Senate 115-17 (2001) (emphasis added). 

On September 14, 1983, the Judiciary Committee produced another lengthy 

document, similar to the 1980 Report, concerning Senate Bill 1762. See Comprehensive 

Crime Control Act of 1983, Report of the Committee on the Judiciary United States Senate, 

S. Rep. No. 98-225 (1983) (“1983 Report”). A comparison of the heretofore-quoted portion 

of the 1980 Report provisions on then-subsection 3616(f) and the 1983 Report on the

proposed § 4246(f) reveals only one change, namely, the word “serious” preceding “bodily 

injury” is omitted in the 1983 Report. Compare 1980 Report at 1123-24, with 1983 Report 

at 253. Further, the Judiciary Committee comparison of revocation of conditional discharge

to “revocation of probation” remained intact. Compare 1980 Report at 1123-24, with 1983

Report at 253. Interestingly, however, the new sentencing option of supervised release

reflected in Senate Bill 1762 and the 1983 Report accompanying it still contemplated no 

revocation scheme. The 1983 Report instead observed as follows:

The term of supervised release is very similar to a term of probation, except 

that it follows a term of imprisonment and may not be imposed for purposes 

of punishment or incapacitation since those purposes will have been served 

to the extent necessary by the term of imprisonment. Unlike a term of 

probation, however, the term of supervised release is not subject to 

revocation for a violation. Instead, for the usual violations, the term or 

conditons [sic] of supervised release may be amended pursuant to subsection 

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(e). If the violation is a new offense, the defendant may, of course, be 

prosecuted for the offense or held in contempt of court for violations of the 

court order setting the conditions of supervised release. The Committee did 

not provide for revocation proceedings for violation of a condition of 

supervised release because it does not believe that a minor violation of a 

condition of supervised release should result in resentencing of the defendant 

and because it believes that a more serious violation should be dealt with as 

a new offense.

1983 Report at 125 (emphasis added); see Senate Bill 1762 at 165 (“The court may, after 

considering . . . [certain] factors . . . (3) treat a violation of a condition of a term of

supervised release as contempt of court pursuant to section 401(3) of this title.”).

While some of the heretofore-quoted language from the 1980 Report respecting the 

burdens and standards of proof does not appear in the 1983 Report, those standards are still 

prominently discussed at various points throughout the latter, including the discussion of 

reforms to the insanity defense and the civil commitment process. See, e.g., 1983 Report 

at 225 (“Thus, it is clear that the question of which party -- the government or the defendant

-- should bear the burden of proof on the insanity defense, as well as the appropriate 

standard, are not of constitutional dimensions beyond the power of Congress to legislate.”); 

id. at 229 (“More than half of the States now place the burden of proving insanity on the 

defendant, albeit often by a preponderance of the evidence standard. As previously noted, 

the Supreme Court . . . has made it clear that placing this burden of proof on the defendant 

under a standard of clear and convincing evidence is constitutionally permissible.”); id. at 

230; id. at 236 (“Subsection (d) of section 4241 provides that the court must make a 

determination with respect to the defendant’s competency based upon a preponderance of 

the evidence.”); id. at 237; id. at 238; id. at 240 n.58; id. at 242-43; id. at 246; id. at 249. 

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One such reference to “preponderance of the evidence” is found in the 1983 Report on the 

page immediately preceding discussion of subsection § 4246(f). Id. at 252. Again, these 

many references to standards of proof, some in close proximity to the 1983 Report 

discussion of the proposed, revised § 4246(f), by this point appear to conclusively foreclose 

any notion that Congress mistakenly omitted a governing proof standard for revocation of 

conditional discharge; it instead appears the omission was entirely purposeful.

Ultimately, the material provisions of the proposed § 4246 contained in Senate Bill 

105 originally introduced by Senator Thurmond in January 1983 were included in Senate 

Bill 1762. And, in particular, subsection 4246(f) of Senate Bill 105 emerged entirely 

unscathed after its inclusion in Senate Bill 1762. Compare 18 U.S.C. § 4246(f), with 129 

Cong. Rec. S667 (daily ed. Jan. 26, 1983).

On February 2, 1984, Senate Bill 1762 passed by a 91-1 margin. Almanac at 215.

The proceedings thereafter in both the House of Representatives and in conference follow:

On Sept. 25, House Republicans employed an end run to get the Senate crime 

bill passed. Rep. Dan Lungren, R-Calif. a Judiciary Committee member, 

made a motion to send the “must-pass” fiscal 1985 continuing appropriations 

resolution (HJ Res 648) back to the Appropriations Committee with 

instructions to attach a House bill (HR 5963) identical to the Senate crime 

package and return the measure to the full House.

Lungren’s motion was agreed to 243-166, with 89 Democrats joining 154 

Republicans in supporting the maneuver. . . .

The funding bill, with the crime package attached, promptly returned to the 

House floor and was passed the same day, 316-91. . . .

On Oct. 2, House Democrats countered by consolidating various Judiciary 

Committee proposals into one bill (HR 5690) and proposing it for passage 

under suspension of the rules, which requires a two-thirds majority. The bill 

passed 406-16. . . .

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When the funding bill (HJ Res 648) got to the Senate, members decided to 

retain the crime provisions, even though most other riders were eventually 

stripped from the measure. . . .

The Senate decision assured that major crime legislation would be enacted 

in 1984. And the House Democrats’ Oct. 2 move to pass their own bill [(HR 

5690)] did have some effect on the final product. When appropriations 

conferees met Oct. 10, they called in House and Senate Judiciary members 

to advise them on the crime section of HJ Res 648.

During a lengthy and somewhat testy meeting, a final compromise crime 

package was worked out.

Almanac at 215.

At least one element of the compromise is noteworthy. Title II of House of 

Representatives Bill 5690 dealt with the “Insanity Defense.” H.R. 5690, 98th Cong. Title 

II 28 (1984). The Bill included a civil commitment provision of its own, along with a

conditional discharge scheme at § 4175. The revocation hearing for those who violated

their conditional discharge was prescribed in § 4175(f) as follows:

Following such [revocation] hearing, the court—

(1) shall recommit the person under section 4174 of this title if 

the court finds by a preponderance of the evidence that the 

likelihood that the person will commit acts of serious bodily 

injury to any person or substantial damage to the property of 

another is sufficient to justify commitment . . . .

Id. at 64 (emphasis added). The proposed preponderance standard in House of 

Representatives Bill 5690 died in Conference on October 10, 1984; instead, the Senate --

and the current -- version of conditional discharge and revocation found in § 4246(f) was 

included in the proposed 1984 CCCA, which was, in turn, then added to House Joint 

Resolution 648, the appropriations bill for Fiscal Year 1985. 

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With President Reagan’s signature on October 12, 1984, the 1984 CCCA, Pub. L. 

No. 98-473, 98 Stat. 1976, as Title II of a Continuing Appropriations Act for Fiscal Year 

1985, became law. Continuing Appropriations, 1985 -- Comprehensive Crime Control Act 

of 1984, S. Rep. No. 98-225 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182. One 

commentator described the 1984 CCCA as “a series of sweeping changes” and “‘the most 

significant series of changes in the federal criminal justice system ever enacted at one 

time.’” Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed 

Career Criminal Act and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 210 

(2019) (quoting Joseph E. diGenova & Constance L. Belfiore, An Overview of the 

Comprehensive Crime Control Act of 1984 -- The Prosecutor’s Perspective, 22 Am. Crim. 

L. Rev. 707, 707 (1985)); see also S. Rep. 98-225, at 1, as reprinted in 1984 U.S.C.C.A.N. 

3182, 3184 (“The Comprehensive Crime Control Act . . . is the product of a decade long 

bipartisan effort of the Senate Committee on the Judiciary, with the cooperation and 

support of successive administrations, to make major comprehensive improvements to the 

federal criminal laws. Significant parts of the measure, such as . . . insanity defense 

amendments . . . have evolved over the almost two-decade consideration of proposals to 

enact a modern federal criminal code.”). 

As a result of the bulk of Senate Bill 1762 finding its way into the 1984 CCCA, 

neither (1) the newly amended § 3565(a)(2) or Federal Rule of Criminal Procedure 32.1 

dealing with probation revocation, nor (2) the newly added § 4246(f) dealing with 

revocation of conditional discharge, contained a proof standard governing the judicial 

decision. Additionally, respecting the entirely new sentencing option of supervised release, 

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revocation under § 3583(e)(3) was not even an option. The district court was limited to

entering a contempt sanction, again with no textual proof standard imposed.12

With this extended historical context, we now turn to the two questions presented.

V.

A. The Proof Standard for § 4246(f)

1. Textual Analysis

The Supreme Court has consistently reiterated our interpretive task begins with the 

statutory text:

Congress expresses its intentions through statutory text passed by both 

Houses and signed by the President (or passed over a Presidential veto). As 

this Court has repeatedly stated, the text of a law controls over purported 

legislative intentions unmoored from any statutory text. The Court may not 

“replace the actual text with speculation as to Congress’ intent.” 

Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2496–97 (2022) (quoting Magwood v. 

Patterson, 561 U.S. 320, 334 (2010)); id. (noting further “the legislature says what it means 

and means what it says”) (quoting Henson v. Santander Consumer USA Inc., 137 S. Ct.

1718, 1725 (2017) (internal quotation marks and alterations omitted). We have emphasized 

the same approach: “‘As with all cases involving statutory interpretation, we begin our 

analysis with the text of the governing statute.’” United States v. Perez, 22 F.4th 430, 436 

(4th Cir. 2022) (quoting United States v. Muhammad, 16 F.4th 126, 128 (4th Cir. 2021)).

12 Section 3583 was amended on October 27, 1986. Anti-Drug Abuse Act of 1986, 

Pub. L. 99–570, 100 Stat. 3207 § 1006 (Oct. 27, 1986). The amendment required a finding 

“by a preponderance of the evidence” that the supervisee violated her conditions. Id.

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That task is straightforward with § 4246(f); as noted, Congress inserted no proof 

standard. To the extent necessary, that conclusion is fortified by Congress inserting two 

other proof standards elsewhere in § 4246. It is quite tempting to read in a proof standard

where none exists. One might base that addition upon the legislative history, common 

sense, reason, supposition, or simply a desire to guide the district court’s discretion or aid 

our review. Regardless of the motivation, that perhaps well-meaning approach inevitably 

smacks of an ill-advised judicial amendment. That is especially the case given -- as more 

fully discussed in the next section -- the obvious care taken with § 4246 during the 

legislative process, which spanned years. We are thus left with no textual proof standard 

in § 4246(f).

2. Confirmation by Legislative History

While resort to legislative history is unnecessary, we have occasionally examined it

to confirm the textual analysis. In re Eli Lilly & Co., 37 F.4th 160, 165 (4th Cir. 2022)

(“This textual conclusion is confirmed by legislative history, although any reference to 

legislative history in these circumstances might be gratuitous.”); Krakauer v. Dish 

Network, L.L.C., 925 F.3d 643, 657 (4th Cir. 2019) (“The extensive legislative history 

accompanying the TCPA confirms its broad reach.”); Hately v. Watts, 917 F.3d 770, 785 

(4th Cir. 2019) (“The plain language of this definition encompasses email. And the 

legislative history confirms that Congress intended this definition to encompass email.”).

From the moment § 4246(f) was drawn by the Judiciary Committee in 1979, and 

then transmitted to the full Senate in the 1980 Markup, it contained no proof standard. And, 

as noted, the language of that subsection remained materially static from its inception in 

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the 1980 Markup through its incorporation into the 1984 CCCA. Within that time period, 

the leadership of both the Senate and the Judiciary Committee changed hands in 1981. 

Despite that rather tectonic political shift, both men who chaired the Judiciary Committee

during the relevant periods -- Senator Kennedy through 1980 and Senator Thurmond 

thereafter through the enactment of the 1984 CCCA -- supported the proposed statutory 

language found in § 4246(f).

Further, as earlier noted, the 1980 and 1983 Reports -- not to mention the various 

Senate Bills earlier discussed -- were replete with references to proof standards, some of 

which were found, and remain, in § 4246 presently. Indeed, as noted supra, the 1980 

Markup added a proof standard (preponderance of the evidence) to the proposed statutory 

section that ultimately became § 4245, immediately preceding the statutory section that

became § 4246. The absence of a § 4246(f) proof standard was a legislative choice.

Were that an open question, however, all doubt is dispelled by what occurred during 

Conference on the 1984 CCCA. As the discussion in Part IV.E demonstrates, within the 

civil commitment process in Title II of House of Representatives Bill 5690 dealing with 

the “Insanity Defense,” H.R. 5609, 98th Cong. Title II 28 (1984), one who would have 

been federally committed and then conditionally released under proposed Chapter 310, 

§ 4175, was subject to recommitment if the court found “by a preponderance of the 

evidence that the likelihood that the person will commit acts of serious bodily injury to any 

person or substantial damage to the property of another is sufficient to justify 

commitment.” Id. at 64 (emphasis added). The striking of that provision during

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Conference, substituting for it the Senate Bill 1762 version of § 4246(f) containing no proof 

standard, is a drafting event of significant moment:

“Few principles of statutory construction are more compelling than the 

proposition that Congress does not intend sub silentio to enact statutory 

language that it has earlier discarded in favor of other language.” INS v. 

Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (quoting Nachman Corp. v. 

Pension Benefit Guar. Corp., 446 U.S. 359, 392–93 (1980) (Stewart, J., 

dissenting)); see also Muniz v. Hoffman, 422 U.S. 454, 468 (1975) 

(explaining that statutory text “may not be read isolated from its legislative 

history and the revision process from which it emerged, all of which place 

definite limitations on the latitude we have in construing it.”).

Garey v. James S. Farrin, P.C., 35 F.4th 917, 927 (4th Cir. 2022). 

The legislative history thus abundantly confirms that there is no textual proof 

standard in § 4246(f). Leaving the matter there, however, is unacceptable. It is one thing to 

find a textual proof standard unstated and quite another to assume no proof standard was 

intended at all. Whether the absence of a governing textual proof standard results in a latent 

ambiguity or, alternatively, the plain meaning of the statute nevertheless produces an 

“absurdity . . . or an outcome that is demonstrably at odds with clearly expressed 

congressional intent,” we are obliged to probe more deeply. In re Sunterra Corp., 361 F.3d 

257, 265 (4th Cir. 2004). That is especially the case where, as here, a missing or 

misunderstood proof standard might cause either (1) the mistaken deprivation of one’s

liberty, or (2) an errant release of one bent on causing catastrophic harm.

A broader textual and contextual analysis of the 1984 CCCA is thus warranted, 

using our customary canons. Of immediate interest is the two-fold consideration that (1) 

the 1980 and 1983 Reports analogized conditional discharge and revocation to probation,

and (2) both of those forms of judicial supervision found in the 1984 CCCA lack a proof 

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standard. In view of the parallels between these two forms of judicial supervision -- one 

brand new and one in existence for decades -- the well-developed probation revocation 

model may have influenced Congress’ approach under § 4246(f). An analysis of the 

probation imposition and revocation process in place on the eve of the 1984 CCCA may 

thus inform the proper interpretation of § 4246(f).

3. The Probation Analogy

As noted, when the 1984 CCCA was enacted, it not only created the entirely new 

process for conditional discharge and revocation under § 4246(f), but also modified the 

longstanding process for imposing and revoking probation. 

Unlike the conditional discharge and revocation process, however, probation was 

an authorized sentence long predating enactment of the 1984 CCCA. It is thus not only 

helpful to consider how the probation revocation process worked in the decades preceding 

the 1984 CCCA—it is an essential part of the construction process:

As a matter of statutory construction, federal courts “presume that Congress 

is knowledgeable about existing law pertinent to the legislation it enacts.” 

Goodyear Atomic Corporation v. Miller, 486 U.S. 174, 184–85 (1988); see 

also Strawn v. AT&T Mobility, LLC, 530 F.3d 293, 297 (4th Cir. 2008) 

(recognizing that “in the absence of statutory text reversing the burden of 

proof, we presume that Congress legislated consistently with existing law”); 

United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (en banc) 

(explaining that “it is firmly entrenched that Congress is presumed to enact 

legislation with knowledge of the law; that is with the knowledge of the 

interpretation that courts have given to an existing statute”) (referencing 

Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 267–68 (1992)). Accordingly, 

“‘absent a clear manifestation of contrary intent, a newly-enacted or revised 

statute is presumed to be harmonious with existing law and its judicial 

construction.’” Id. (quoting Est. of Wood v. Comm’r, 909 F.2d 1155, 1160 

(8th Cir. 1990).

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Pugin v. Garland, 19 F.4th 437, 458–59 (4th Cir. 2021) (Gregory, C.J., dissenting); see 

also United States v. Cong. of Indus. Organizations, 335 U.S. 106, 112 (1948) (“There is 

no better key to a difficult problem of statutory construction than the law from which the 

challenged statute emerged.”); Palisades Collections LLC v. Shorts, 552 F.3d 327, 335 (4th 

Cir. 2008) (“[W]e presume that Congress legislated consistently with existing law and with 

the knowledge of the interpretation that courts have given to the existing statute.”).

With President Calvin Coolidge’s signature on March 4, 1925, the United States 

first authorized a sentence of probation. An Act to Provide for the Establishment of a 

Probation System in the United States Courts, Except in the District of Columbia, ch. 521, 

43 Stat. 1259 (1925). The very first revocation provisions read as follows:

At any time after the probation period, but within the maximum period for 

which the defendant might originally have been sentenced, the court may 

issue a warrant and cause the defendant to be arrested and brought before the 

court. Thereupon the court may revoke the probation or the suspension of 

sentence, and may impose any sentence which might originally have been 

imposed.

Id. at 1260. No proof standard appears. The statutory language changed very little until a 

May 24, 1949, amendment modified the revocation language to read as follows:

As speedily as possible after arrest the probationer shall be taken before the 

court for the district having jurisdiction over him. Thereupon the court may 

revoke the probation and require him to serve the sentence imposed, or any 

lesser sentence, and, if imposition of sentence was suspended, may impose 

any sentence which might originally have been imposed.

Probation, ch. 139, 63 Stat. 96 (1949). Again, no proof standard appears. This version of 

the revocation provision remained intact until enactment of the 1984 CCCA. In sum, for 

the 59 years preceding the 1984 CCCA, Congress found it unnecessary to insert a proof 

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standard into its probation revocation scheme. It instead stood silent on the matter, even 

after the watershed decision in Gagnon v. Scarpelli, 411 U.S. 778 (1973), that essentially 

rewrote the due process protections attendant to the probation revocation process. Id. at 

782 (“Probation revocation, like parole revocation, is not a stage of a criminal prosecution, 

but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, 

is entitled to a preliminary and a final revocation hearing, under the conditions specified in 

Morrissey v. Brewer[, 408 U.S. 471 (1972).]”). And when Congress reworked the 

probation process entirely in the 1984 CCCA, it likewise inserted no proof standard. And, 

as earlier noted, there is presently no textual proof standard for probation revocations.

In accord with Goodyear and its progeny, we examine the probation revocation 

proof standard(s) against which Congress legislated in 1984. At that time, the Circuits were 

split respecting two different proof standards guiding a district court’s discretionary 

decision on probation revocation:

Standards for proof in such proceedings did emerge, however, through 

judicial review of revocation decisions. . . . Alternatively, the court may look 

to see if the “evidence and facts be such as to reasonably satisfy the judge 

that the conduct of the probationer has not been as good as required by the 

conditions of probation.” A number of recent decisions have found the 

“reasonably satisfy” test to be adequate even under the due process mandate 

of Morrissey.

A small minority of courts had required a preponderance of the 

evidence as a basis for revocation of probation or parole even prior to 

Morrissey. Subsequent to Morrissey, a number of state courts also held that 

such a standard of proof is required to satisfy due process. No court has held, 

and a number of courts have expressly rejected, the contention that a 

violation need be proved beyond a reasonable doubt.

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William C. Bowers, Comment, Does Due Process Require Clear and Convincing Proof 

Before Life’s Liberties May Be Lost?, 24 Emory L.J. 105, 123–24 (1975) (emphasis added)

(footnotes omitted) (“The vast majority of state statutes, as well as the federal parole and 

probation statutes, contain no direction as to the necessary burden of proof.”) (footnotes 

omitted).

The majority approach appears to have resulted from Burns v. United States, 287 

U.S. 216 (1932). The decision in Burns observed as follows: 

There is no suggestion in [the Federal Probation Act] that the scope of the 

discretion conferred for the purpose of making the grant [of probation] is

narrowed in providing for its modification or revocation . . . . The question 

in both cases is whether the court is satisfied that its action will subserve the 

ends of justice and the best interests of both the public and the defendant. 

Id. at 221 (emphasis added). Based upon the Burns decision, as noted by the commentator, 

nearly all circuits prior to the 1984 CCCA adopted the “reasonable satisfaction” test. See,

e.g., United States v. Smith, 571 F.2d 370, 372 (7th Cir. 1978) (holding that the Court would 

“adhere to the rule that a district court may revoke probation when ‘reasonably satisfied’ 

that the probationer ha[d] violated a condition of his probation”); United States v. Strada, 

503 F.2d 1081, 1085 (8th Cir. 1974) (holding that “the trial judge is given a great deal of 

latitude in revocation proceedings. In order to justify a revocation order ‘all that is required 

is enough evidence, within a sound judicial discretion, to satisfy the district judge that the 

conduct of the probationer has not met the conditions of his probation’” (cleaned up)); 

United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973) (holding that “[a] revocation of 

probation does not require proof sufficient to sustain a criminal conviction. All that is 

required is enough evidence, within a sound judicial discretion, to satisfy the district judge 

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that the conduct of the probationer has not met the conditions of the probation”); United 

States v. Carrion, 457 F.2d 808, 809 (9th Cir. 1972) (holding that “[p]robation may be 

revoked when the judge is reasonably satisfied that a state of federal law has been violated, 

and conviction is not a prerequisite”); United States v. D’Amato, 429 F.2d 1284, 1286 (3d 

Cir. 1970) (holding that “[t]he district judge need only be reasonably satisfied that the terms 

of the probation have been violated” to revoke probation); United States v. Nagelberg, 413 

F.2d 708, 709 (2d Cir. 1969) (holding that “[o]n a hearing to revoke probation, all that is 

required is that the court be satisfied that appellant had abused the opportunity granted him 

not to be incarcerated” (cleaned up)); Nelson v. United States, 225 F.2d 902, 903 (10th Cir. 

1955) (holding that “[c]ourts may not act arbitrarily in revoking probations, but all that is 

required is evidence and facts which reasonably satisfy the judge that the probationer’s 

conduct has not been as good as that required by the conditions of probation”); accord 

Yates v. United States, 308 F.2d 737 (10th Cir. 1962); Rodgers v. United States, 413 F.2d 

251 (10th Cir. 1969).

This was thus the backdrop against which Congress -- in a single, historic statutory 

overhaul represented by the 1984 CCCA -- simultaneously touched nearly all forms of 

judicial supervision by (1) rewriting the probation statutes, (2) creating the new process for 

conditional discharge and revocation under § 4246, and (3) authorizing a contempt sanction 

for violation of the freshly minted sentence of supervised release. The synchronous 

enactment alone is of great moment for interpretive purposes. See Erlenbaugh v. United 

States, 409 U.S. 239, 243 (1972) (noting that the presumption of consistent meaning 

between statutory language “certainly makes the most sense when the statutes were enacted 

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by the same legislative body at the same time”) (quoted in United States v. Simms, 914 

F.3d 229, 243 (4th Cir. 2019) (en banc)); see also Stevenson’s Heirs v. Sullivant, 18 U.S. 

207, 220 (1820) (“These laws have extraordinary claims to be considered as one statute. 

They were compiled at the same time, by the same committee, composed of the ablest 

lawyers and civilians of their country -- enacted at the same session of the same legislative 

body, in the same year, (1785;) and, lastly, all went into operation at the same time, on the 

1st of January, 1789.”).

The canons aside, aligning the revocation proof standards for each of the three types 

of judicial supervision makes good sense. As noted, the 1980 and 1983 Reports recognized 

the similarities between probation and conditional discharge under § 4246(f). We have, in 

turn, recognized that probation and supervised release are nearly identical in form. United 

States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992) (“Supervised release and probation 

differ only in that the former follows a prison term and the latter is in lieu of a prison 

term.”). 

It follows ineluctably that Congress found satisfactory the existing judicial proof 

standard governing revocation of probation, the primary form of judicial supervision at the 

time. And that standard is, at a minimum, instructive as to the proper proof standard 

governing revocation of conditional discharge under § 4246(f), as both bear on the same 

concept of judicial supervision, were enacted simultaneously, and were compared to one 

another by the Judiciary Committee in the years leading to the 1984 CCCA. And that would 

be the end of the interpretive process, with a seamless adoption of the “reasonably 

satisfied” standard for revocation under §4246(f).

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Following enactment of the 1984 CCCA, however, the proof-standard scorecard has 

changed markedly, with at least seven circuits, whether by published or unpublished 

decision, moving to the preponderance standard for revocation of probation. United States 

v. Teran, 98 F.3d 831, 836 (5th Cir. 1996) (“The revoking court must base a finding of a 

probation violation on a preponderance of the evidence.”); United States v. Bujak, 347 F.3d 

607, 609 (6th Cir. 2003) (holding “that the preponderance of the evidence standard also 

applies to determinations of whether a probationer has violated a condition of probation”); 

United States v. Smith, 767 F.2d 521, 523–24 (8th Cir. 1985) (“[T]he standard of proof 

required for probation revocation is only a preponderance of the evidence . . . .”); United 

States v. Verduzco, 330 F.3d 1182, 1185 (9th Cir. 2003) (noting that the difference between 

probation and supervised released revocation is “inconsequential” for evidentiary 

purposes); United States v. Lyons, 312 F. App’x 133, 134 (10th Cir. 2009) (affirming the 

district court’s finding that, by a preponderance of the evidence, the defendant violated 

probation); United States v. Lamelas-Linares, 181 F. App’x 788, 789 (11th Cir. 2006) 

(noting that violation of probation need only be found using a preponderance of the 

evidence standard); United States v. Hooker, 993 F.2d 898, 900 (D.C. Cir. 1993) (finding 

the preponderance of the evidence standard to be the appropriate standard for revocation 

of probation proceedings).

We have followed a similar course. We used the “reasonably satisfied” standard 

exclusively until approximately one decade ago. United States v. Simmons, 370 F. App’x 

374, 375 (4th Cir. 2010) (“The court must be reasonably satisfied that the defendant 

violated a condition of probation.”); United States v. Bartrug, No. 93-5829, 1995 WL 

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444836, at *1 (4th Cir. Jul. 28, 1995) (“We find that there was sufficient evidence presented 

in this case from which the district court could be reasonably satisfied that Bartrug violated 

the conditions of his probation and supervised release.”); United States v. Cates, 402 F.2d 

473, 474 (4th Cir. 1968) (“Revocation is discretionary with the District Judge, and he need 

only be reasonably satisfied that a probationer has violated the terms of his release.”); 

United States v. Williams, 378 F.2d 665, 666 (4th Cir. 1967) (“All that is required is that 

the evidence and facts be such as to reasonably satisfy the judge that the conduct of the 

probationer has not been as good as required by the conditions of the probation.” (cleaned 

up)).

More recently, we have consistently used the preponderance standard for probation 

revocation. United States v. Sadeghi, 616 F. App’x 607, 608 (4th Cir. 2015) (“Rather, the 

district court need only find a violation of a probation term by a preponderance of the 

evidence.”); United States v. Kirby, 547 F. App’x 363, 364 (4th Cir. 2013) (“To revoke a 

defendant’s probation, the district court need only find a violation by a preponderance of 

the evidence.”); United States v. Carroway, 410 F. App’x 712, 712 (4th Cir. 2011) (“The 

district court need find a violation of a term of probation by only a preponderance of the 

evidence.”). This change may find its origins in a combination of factors, including (1) the 

trend in the circuits, (2) our 1992 observation that “[s]upervised release and probation 

differ only in that the former follows a prison term and the latter is in lieu of a prison term,” 

United States v. Copley, 978 F.2d 829, 831 n.* (4th Cir. 1992), and (3) perhaps the 1986 

“technical amendment” to § 3583(e)(3) requiring that violations of supervised release 

conditions be based on findings by a preponderance. Pub. L. No. 99-570, 100 Stat. 3207

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(1986) (codified at 18 U.S.C. § 3283(e)(3)). Irrespective of the reason, it appears we now 

require the finding of a probation violation by a preponderance of the evidence.

Considering (1) the 1980 and 1983 Reports equating probation and conditional 

discharge, (2) Congress’ apparent satisfaction with the proof standard for probation 

revocation as it existed at the time of the 1984 CCCA, (3) Congress’ amendment to 

§ 3583(e)(3) to require use of the preponderance standard in the supervised release 

revocation process, and (4) the parallel we observed decades ago between probation and 

supervised release, we think it fully supported by the statutory text, the legislative history, 

consistency, and good sense to require use of the preponderance standard for revocations

uniformly across the three essentially identical judicial supervision processes for 

conditional discharge, probation, and supervised release. Furthermore, we apply that 

standard to both determinations necessary for revocation under § 4246(f), namely, (1) the 

failure to comply with a conditional discharge treatment regimen, and (2) whether that 

failure gives rise to dangerousness and revocation.

B. Conducting the Dangerousness Inquiry

We now move to the second question presented in this appeal, namely, the process 

by which the district court will make its revocation findings under § 4246(f) (the 

“dangerousness inquiry” or “risk assessment”). As noted, the district court observed as 

follows during the revocation hearing for Mr. Perkins:

This is a very new area for the Court to get into. In the past, I had felt 

— and I guess I still do — that violation of the order of conditional release 

is in itself a qualification for — a reason for revocation of conditional release 

and recommitting the respondent to the custody of the Attorney General. 

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I really don’t — and I hope the Fourth Circuit will amplify what it 

meant by having to find these additional requirements. 

J.A. 138–39. After reciting the violations it found to have existed, the district court stated 

without elaboration “that the violations heretofore set out depicting the conduct of the 

defendant during his release would create a substantial risk of bodily injury to another 

person or serious damage to the property of another.” Id. 141 (emphasis added).

The district court’s desire for guidance is one shared by other courts. See, e.g., 

United States v. Sahhar, 917 F.2d 1197, 1207 (9th Cir. 1990) (“Section 4246 provides little 

guidance as to how the government must prove that the person to be committed poses a 

substantial risk of causing bodily injury or serious property damage. . . . Rather, the 

substantial risk requirement ‘guides the judge who must make the commitment decision,’

and creates essentially the same standard for federal involuntary commitment as used in 

many state procedures.” (cleaned up)).

As noted, the § 4246(f) revocation decision hinges upon the outcome of a hearing, 

after which the district court must determine “whether the person should be remanded to a 

suitable facility on the ground that, in light of his failure to comply with the prescribed 

regimen of medical, psychiatric, or psychological care or treatment, his continued release 

would create a substantial risk of bodily injury to another person or serious damage to 

property of another.” 18 U.S.C. § 4246(f). The plain meaning of the text is whether the (1) 

subject’s “failure to comply with the prescribed regimen of medical, psychiatric, or 

psychological care or treatment” (2) would result in “a substantial risk of bodily injury to 

another person or serious damage to property of another.” 18 U.S.C.A. § 4246.

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We have not previously discussed at length the applicable factors for making and 

supporting the second part of the statutory standard, namely, the dangerousness 

determination. The most frequently cited source for that purpose, and one we have relied 

upon in our unpublished decisions, is United States v. Ecker, 30 F.3d 966 (8th Cir. 1994),

and the few factors there noted. Those factors are “a history of dangerousness, a history of 

drug or alcohol use, identified potential targets, previous use of weapons, any recent 

incidents manifesting dangerousness, and a history of problems taking prescribed 

medicines.” Id. at 970–71 (cited in United States v. Taylor, 644 F. App’x 227, 228 (4th Cir. 

2016); United States v. Conroy, 546 F. App’x 311, 315 (4th Cir. 2013); United States v. 

Sellers, 549 F. App’x 139, 141 (4th Cir. 2013); United States v. Taylor, 311 F. App’x 678, 

679 (4th Cir. 2009)). The Ecker list of factors apparently originated thirty years ago from 

their mention and use by an expert in the case referred to only as “Dr. Quinn.” Id. at 970.13

13 More recently, the Eighth Circuit has offered additional, helpful guidance 

respecting the dangerousness determination:

“Overt acts of violence are not required to demonstrate dangerousness.” 

“[D]elusions and threats [are] enough to prove dangerousness even though 

[the] defendant never had the opportunity to act on them.” The fact that a 

person’s “recent behavior has been vastly improved,” on its own, “does not 

require a finding that [the detainee] is not dangerous.” “[T]he recency or 

remoteness of any particular activity simply affects the weight the court will 

give to that particular evidence.” Nor does that fact, coupled with a detainee’s 

“minimal history of actual violence,” require a finding that the detainee is 

not dangerous. “A finding of substantial risk under § 4246 may be based on 

any activity that evinces a genuine possibility of future harm to persons or 

property.” 

United States v. Dalasta, 3 F.4th 1121, 1125 (8th Cir. 2021) (cleaned up).

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These factors and guidance have proven helpful. But the concepts of dangerousness 

and risk assessment are increasingly complex, multifaceted, and continually evolving. For 

example, one watershed development post-Ecker was the multiyear study and 1998

publication of Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and 

Violence. John Monahan et al., Rethinking Risk Assessment: The MacArthur Study of 

Mental Disorder and Violence (2001) (“MacArthur Study”). One reviewer observed as 

follows the year following publication of the MacArthur Study:

This book is a clarion call for a new method of assessing an individual’s risk 

of violence toward others in a community setting. It presents findings from 

the MacArthur Violence Risk Assessment Study, a project conducted by 

some of the nation’s leading forensic clinicians and researchers. Ten years in 

the making, Rethinking Risk Assessment turns previous risk assessment 

methods on their heads. Despite the fact that we have known for many years 

that statistical methods of risk assessment are superior to clinical methods, 

the old ways die hard.

. . . .

The authors reviewed 134 risk factors, grouping them into “criminological”

and “clinical” categories. For clinical purposes, they recommend a subset of 

106 factors for which information is readily obtainable. They conclude that 

univariate predictors of violence have been shown to be poor predictors and 

that an interactional approach is necessary. With this approach, one variable 

could be a positive risk factor for violence in one group, unrelated to violence 

in another group, and protective against violence in a third group.

Theodore Lawler, M.D., 53 Psychiatric Servs. 1355, 1484-a (2002) (reviewing MacArthur 

Study) (emphasis added). As indicated in the emphasized portion, potentially material

factors predicting dangerousness were becoming practically innumerable even twenty

years ago. 

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Additionally, some have criticized the MacArthur Study. Just a decade following its 

publication, in the very same scholarly publication where it was praised by the reviewer 

above cited, other commentators undertook a published debate with the MacArthur Study 

authors, disagreeing with its findings and faulting its research design. E. Fuller Torrey, 

M.D. et al., The MacArthur Violence Risk Assessment Study Revisited: Two Views Ten 

Years After Its Initial Publication, 59 Psychiatric Servs. 135, 147 (2008). 

And if the calculus on applicable factors and predictive techniques could not be 

more muddled, the debate -- and development of newer predictive techniques such as 

actuarial risk assessment tools -- continues presently:

With the advent of actuarial, statistically driven violence risk assessment 

measures and research on their predictive powers, it has been debated 

whether they are superior to clinical judgment in assessing violence risk.

Some authors argue that clinical methods without structure are susceptible to 

bias, oversight of important risk factors, and lack of reliability and validity. 

Others have found actuarial assessments to be limited in that they yield risk 

stratification but without incorporating contextual and dynamic shifts 

relevant to an individual’s risk presentation. That said, the actuarial 

instruments were not intended to design interventions in treatment, and 

recent studies have highlighted that although these tools identify risk levels, 

they do not provide all that is needed for individualized treatment and release 

planning. Still, clinicians in specific settings, especially within correctional 

and forensic systems, might use actuarial-type VRAIs to add additional data 

in the risk assessments needed for decision making.

Debra A. Pinals, M.D., Violence Risk Assessment in Clinical Settings: Enduring 

Challenges and Evolving Lessons, 29 Harv. Rev. Psych. 90, 91 (2021) (noting additionally 

that, “[i]ronically, even some structured risk assessment tools, developed and promulgated 

as ‘objective’ and ‘unbiased,’ are now being critiqued for being built upon a foundation of 

variables fraught with biases and other structural limitations”).

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Dr. Pinals’ work and her citation to an American Psychiatric Association (“APA”)

Resource Document are especially helpful. Her article includes widely accepted clinical 

factors for determining dangerousness:

Prototypical, clinically relevant violence-associated risk factors include the 

following: past history of violence, prior arrest history, young age at first 

arrest, history of substance use, prior fire setting, animal cruelty, risk-taking 

behavior, impulsivity, current mental state circumstances, nonadherence to 

treatment, access to weapons, dynamics in the household [including the role 

of a significant other and/or caretaker (either provocative or not protective)], 

viewing oneself as a victim, lack of [compassion and] empathy, overt 

intention to harm, and lack of concern over [consequences of] violent act. In 

acute settings, hostility and suspiciousness might signal risk of acute 

aggression.

Id. at 91 (citing APA Resource Document, Work Group on Psychiatric Violence Risk 

Assessment, APA Council on Psychiatry and Law, Alec Buchanan, Renee Binder et al., 

169 Am. J. Psych. 340 (2012) (data supplement attached to article stating, “The APA 

published a Task Force report, ‘Clinical Aspects of the Violent Individual,’ in 1974. Since 

then, the assessment of violence risk by psychiatrists has assumed increased prominence. 

At the same time, significant changes have taken place both in the contexts in which

psychiatrists assess risk and in the techniques that help them do so”) (footnotes omitted)).

There is an additional wrinkle when one considers whether it remains practical to 

assemble a list of factors for consideration by the district courts. Civil commitment has 

long resided primarily in the hands of the state sovereigns. The Supreme Court has 

recognized that “‘[t]he States have traditionally exercised broad power to commit persons 

found to be mentally ill.’” United States v. Comstock, 560 U.S. 126, 144 (2010) (quoting 

Jackson v. Indiana, 406 U.S. 715, 736 (1972)). Congress recognized as much, given its 

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multiple references in Chapter 313 and its predecessor statute’s provisions to having state 

authorities assume responsibility for those persons hospitalized after being found not guilty 

by reason of insanity and those due for release but suffering from a mental disease. See 18 

U.S.C. § 4243(e) (“The Attorney General shall continue periodically to exert all reasonable 

efforts to cause such a State to assume such responsibility for the person’s custody, care, 

and treatment.”); 18 U.S.C. § 4246(d) (same). The 1983 Report is in accord. See 1983

Report at 250 (noting the primary justification for § 4246 hinged upon uncertainty as to 

whether the several states would fulfill their traditional responsibilities in this area: 

“Section 4246 covers those circumstances where State authorities will not institute civil 

commitment proceedings against a hospitalized defendant whose Federal sentence is about 

to expire or against whom all criminal charges have been dropped for reasons related to his 

mental condition and who is presently mentally ill. At such a point the responsibility for 

the care of insane persons is essentially a function of the States. The Committee intends 

that this section be used only in those rare circumstances where a person has no permanent 

residence or there are no State authorities willing to accept him for commitment.”).

Even prior to the decision in O’Connor v. Donaldson, 422 U.S. 563 (1975), state 

legislatures were busy amending their statutory schemes for involuntary commitment. Id.

at 576 (“In short, a State cannot constitutionally confine without more a nondangerous 

individual who is capable of surviving safely in freedom by himself or with the help of 

willing and responsible family members or friends.”); see Megan Testa & Sara G. West,

Civil Commitment in the United States, Psychiatry, Oct. 2010, at 33 (discussing the “Shift 

To Dangerousness Criteria As The Standard For Civil Commitment” commencing in 1964 

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in the District of Columbia) (case adjusted); id. (“Currently, there are only a few states that 

do not follow the trend.”). In fact, however, all states use some form of the “danger to self” 

and “danger to others” standards when determining whether involuntary commitment is 

appropriate.14 Some states also use “danger to property” in their standard.15

14 See Ala. Code § 22-52-10.4(a)(2) (West 2022); Alaska Stat. Ann. § 47.30.755(a) 

(West 2022); Ariz. Rev. Stat. Ann. § 36-540 (West 2022); Ark. Code Ann. § 20-47-

207(c)(1) (West 2022); Cal. Welf. & Inst. Code § 5250(a) (West 2022); Colo. Rev. Stat. 

Ann. § 27-65-113 (West 2022); Conn. Gen. Stat. Ann. § 17a-498(c)(3) (West 2022); Del. 

Code Ann. tit.16, § 5002 (West 2022); D.C. Code Ann. § 21-545(b)(2) (West 2022); Fla. 

Stat. Ann. § 394.467(1) (West 2022); Ga. Code Ann. § 37-3-1(9.1) (West 2022); Haw. 

Rev. Stat. Ann. § 334-60.2 (West 2022); Idaho Code Ann. § 66-329(11) (West 2022); 405 

Ill. Comp. Stat. Ann. 5/1-119, 5/3-700 (West 2022); Ind. Code Ann. § 12-26-6-8(a) (West 

2022); Iowa Code Ann. § 229.13 (West 2022); Kan. Stat. Ann. § 59-2946(f)(1) (West 

2022); Ky. Rev. Stat. Ann. §§ 202A.026(1), 202A.011(2) (West 2022); La. Stat. Ann. 

§§ 28:55(E)(1), 28:2(3)-(4) (West 2022); Me. Rev. Stat. Ann. Tit. 34-B, §§ 3801(4-A), 

3864(6)(A) (West 2022); Md. Code Ann., Health-Gen. §10-632(e)(2) (West 2022); Mass. 

Gen. Laws Ann. Ch. 123, §§ 1, 8(a) (West 2022); Mich. Comp. Laws Ann. § 330.1401(1) 

(West 2022); Minn. Stat. Ann. §§ 253B.02 subd. 17a(a), 253B.09(1) (West 2022); Miss. 

Code Ann. § 41-21-61(f) (West 2022); Mo. Ann. Stat. §§ 632.005(10), 632.350(5) (West 

2022); Mont. Code Ann. § 53-21-126(1) (West 2022); Neb. Rev. Stat. § 71-908 (West 

2022); Nev. Rev. Stat. Ann. §§ 433A.0195 (West 2022); N.H. Rev. Stat. Ann. §§ 135-

C:27, 34 (West 2022); N.J. Stat. Ann. § 30:4-27.2(h)-(i) (West 2022); N.M. Stat. Ann. § 

43-1-11(M), (N) (West 2022); N.Y. Mental Hyg. Law § 9.01 (West 2022); N.C. Gen. Stat. 

Ann. § 122C-3(11) (West 2022); N.D. Cent. Code Ann. §§ 25-03.1-02, 25-03.1-07 (West 

2022); Ohio Rev. Code Ann. §§ 5122.01, 5122.15 (West 2022); Okla. Stat. Ann. tit. 43A, 

§§ 1-103, 5-415 (West 2022); Or. Rev. Stat. Ann. §§ 426.005(f), 426.130 (West 2022); 50 

Pa. Stat. & Cons. Stat. Ann. § 7304 (West 2022); 40.1 R.I. Gen. Laws Ann. §§ 40.1-5-8, 

40.1-5-2(7) (West 2022); S.C. Code Ann. §§ 44-17-580, 44-23-10(13) (West 2022); S.D. 

Codified Laws §§ 27A-1-1, 27A-1-2 (West 2022); Tenn. Code Ann. §§ 33-6-501, 33-6-

502 (West 2022); Tex. Health & Safety Code Ann. § 574.034 (West 2022); Utah Code 

Ann. §§ 62A-15-602, 62A-15-631 (West 2022); Vt. Stat. Ann. tit. 18, §§ 7101, 7611 (West 

2022); Va. Code Ann. § 37.2-817 (West 2022); Wash. Rev. Code Ann. §§ 71.05.020, 

71.05.240 (West 2022); W. Va. Code Ann. §§ 27-5-4, 27-1-12 (West 2022); Wis. Stat. 

Ann. § 51.20 (West 2022); Wyo. Stat. Ann. §§ 25-10-101, 25-10-110 (West 2022).

15 See Alaska Stat. Ann. § 47.30.915(12)(B) (West 2022); Kan. Stat. Ann. § 59-

2946(f)(1) (West 2022); N.J. Stat. Ann. §§ 30:4-27.2(h)-(i) (West 2022); N.C. Gen. Stat. 

(Continued) 

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As science and experience have coincided across the decades, so too has state law 

developed on what factors are predictive of dangerousness. Given the frontline, long-term 

expertise developed by the state sovereigns in this difficult and developing area, the factors 

they have found helpful justifiably aid our inquiry under § 4246. A nationwide statutory 

survey reveals the following factors have drawn state legislative attention:

1. The individual presents a risk of suicide, including past or future threats or 

attempts;16

Ann. § 122C-3(11) (West 2022); N.D. Cent. Code Ann. §§ 25-03.1-02, 25-03.1-07 (West 

2022); Wash. Rev. Code Ann. §§ 71.05.020, 71.05.240 (West 2022); W. Va. Code Ann. 

§§ 27-5-4, 27-1-12 (West 2022).

16 Ariz. Rev. Stat. Ann. § 36-501(8) (West 2022) (“‘Danger to self’: (a) Means behavior. . 

. including attempted suicide or the serious threat thereof . . . .”); Ark. Code Ann. § 20-47-

207(c)(2)(A) (West 2022) (“[A] clear and present danger to himself or herself [can be] 

established by demonstrating that: (A) [t]he person . . . has attempted suicide . . . .”); Colo. 

Rev. Stat. Ann. § 27-65-102(10) (West 2022) (“‘Danger to self or others’ means: (a) A 

person poses a substantial risk of physical harm to the person’s self as manifested by 

evidence of recent threats of or attempts at suicide . . . .”); Haw. Rev. Stat. Ann. § 334-1 

(West 2022) (“‘Dangerous to self’ means the person recently has: (1) Threatened or 

attempted suicide . . . .”); Idaho Code Ann. § 66-317(10) (West 2022) (“‘Likely to injure 

himself or others’ means: (a) A substantial risk that physical harm will be inflicted by the 

proposed patient upon his own person, as evidenced by threats or attempts to commit 

suicide . . . .”); Me. Rev. Stat. Ann. tit. 34-B, §§ 3801(4-A) (West 2022) (“‘Likelihood of 

serious harm’ means: . . . [a] substantial risk of physical harm to the person as manifested 

by recent threats of, or attempts at, suicide.”); Mass. Gen. Laws Ann. ch. 123, § 1 (West 

2022) (“‘Likelihood of serious harm’, [is defined as] a substantial risk of physical harm to 

the person himself as manifested by evidence of, threats of, or attempts at, suicide.”); Mo. 

Ann. Stat. § 632.005(10) (West 2022) (“Likelihood of serious harm” means . . . a 

substantial risk that serious physical harm will be inflicted by a person upon his own 

person, as evidenced by recent threats, including verbal threats, or attempts to commit 

suicide.”); Neb. Rev. Stat. Ann. § 71-908 (West 2022) (“‘Mentally ill and dangerous

person’ means a person who is mentally ill . . . and because of such mental illness . . . 

(Continued) 

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66 

presents a substantial risk of serious harm to himself or herself within the near future as 

manifested by evidence of recent attempts at, or threats of, suicide.”); Nev. Rev. Stat. Ann. 

§ 433A.0195 (West 2022) (“A person shall be deemed to present a substantial likelihood 

of serious harm to himself or herself . . . if . . . the person is at serious risk of attempting 

suicide.”); N.H. Rev. Stat. Ann. § 135-C:27 (West 2022) (“‘Danger to self’ is established 

by demonstrating that within 40 days of the completion of the petition, the person has . . . 

attempted suicide . . . and there is a likelihood the act or attempted act will recur if 

admission is not ordered.”); N.J. Stat. Ann. § 30:4-27.2 (West 2022) (“‘Dangerous to self” 

means that by reason of mental illness the person has threatened or attempted suicide.”);

N.M. Stat. Ann. § 43-1-3(M) (West 2022) (“‘[L]ikelihood of serious harm to oneself’ 

means that it is more likely than not that in the near future the person will attempt to commit 

suicide.”); N.Y. Mental Hyg. Law § 9.01 (West 2022) (“‘Likelihood to result in serious 

harm’ or ‘likely to result in serious harm’ means (a) a substantial risk of physical harm to

the person as manifested by threats of or attempts at suicide.”); N.C. Gen. Stat. Ann. § 

122C-3(11) (West 2022) (“‘Dangerous to self’[means] . . . the individual has attempted 

suicide or threatened suicide and that there is a reasonable probability of suicide unless 

adequate treatment is given.”); N.D. Cent. Code Ann. § 25-03.1-02 (West 2022) (“Serious 

risk of harm” includes “a substantial likelihood” of “[s]uicide, as manifested by suicidal 

threats, attempts, or significant depression relevant to suicidal potential . . . .”); Ohio Rev. 

Code Ann. § 5122.01 (West 2022) (“Mentally ill person subject to court order” means a 

person who “[r]epresents a substantial risk of physical harm to self as manifested by 

evidence of threats of, or attempts at, suicide . . . .”); Okla. Stat. Ann. tit. 43A, § 1-103 

(West 2022) (“Person requiring treatment” means a person who “poses a substantial risk 

of immediate physical harm to self as manifested by evidence or serious threats of or 

attempts at suicide . . . .”); 50 Pa. Stat. & Cons. Stat. Ann. § 7304 (West 2022) 

(determination of clear and present danger when there is “attempted suicide”); 40.1 R.I. 

Gen. Laws Ann. § 40.1-5-2 (West 2022) (“Likelihood of serious harm” means a 

“substantial risk of physical harm to the person himself or herself as manifested by 

behavior evidencing serious threats of, or attempts at, suicide . . . .”); S.C. Code Ann. § 44-

23-10 (West 2022) (“Likelihood of serious harm” means “a substantial risk of physical 

harm to the person himself as manifested by evidence of threats of, or attempts at, suicide

. . . .”); S.D. Codified Laws § 27A-1-1(7) (West 2022) (“Danger to self” means a 

“reasonable expectation that the person will inflict serious physical injury upon himself or 

herself in the near future . . . as evidenced by . . . the person’s recent acts or omissions 

which constitute a danger of suicide . . . .”); Tenn. Code Ann. § 33-6-501 (West 2022) 

(Continued) 

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67

2. The individual presents a risk of substantial self-harm, including history and 

threats of self-harm;

17

(finding that an individual poses a “substantial likelihood of serious harm” when the 

individual “has threatened or attempted suicide”); Utah Code Ann. § 62A-15-602 (West 

2022) (“‘Substantial danger’ means that due to mental illness, an individual is at serious 

risk of . . . suicide . . . .”); Vt. Stat. Ann. tit. 18, § 7101 (West 2022) (“A danger of harm to 

himself or herself may be shown by establishing that . . . he or she has threatened or 

attempted suicide . . . .”); Wash. Rev. Code Ann. § 71.05.020 (West 2022) (“Likelihood of 

serious harm” means there is a substantial risk that “[p]hysical harm will be inflicted by a 

person upon his or her own person, as evidenced by threats or attempts to commit suicide 

or inflict physical harm on oneself . . . .”); W. Va. Code Ann. § 27-1-12 (West 2022) 

(finding of dangerousness if the “individual has threatened or attempted suicide”); Wis. 

Stat. Ann. § 51.20 (West 2022) (finding of dangerousness when there is “evidence of recent 

threats of or attempts at suicide”); Wyo. Stat. Ann. § 25-10-101 (West 2022 (finding of 

dangerousness when there is “evidence of recent threats of or attempts at suicide”). 

17 Ala. Code § 22-52-10.4(a)(2) (West 2022) (“Respondent poses a real and present threat 

of substantial harm to self.”); Alaska Stat. Ann. § 47.30.915(12)(A) (West 2022) 

(“‘[L]ikely to cause serious harm’ means a person who (A) poses a substantial risk of 

bodily harm to that person’s self, as manifested by recent behavior causing, attempting, or 

threatening that harm . . . .”); Ariz. Rev. Stat. Ann. § 36-501(8)(a)(i) (West 2022) 

(“‘Danger to self’: (a) Means behavior that, as a result of a mental disorder: (i) Constitutes 

a danger of inflicting serious physical harm on oneself . . . .”); Ark. Code Ann. § 20-47-

207(c)(2) (West 2022) (“‘[A] clear and present danger to himself or herself’ is established 

by demonstrating that: (A) The person has inflicted serious bodily injury on himself or 

herself or has attempted . . . serious self-injury, and there is a reasonable probability that 

the conduct will be repeated if admission is not ordered; [or] (B) The person has threatened 

to inflict serious bodily injury on himself or herself, and there is a reasonable probability 

that the conduct will occur if admission is not ordered . . . .”); Cal. Welf. & Inst. Code § 

5250(a) (West 2022) (“If a person is detained . . . and has received an evaluation, he or she 

may be certified for not more than 14 days of intensive treatment related to the mental 

health disorder or impairment by chronic alcoholism, . . . if . . . the person is, as a result of 

a mental health disorder or impairment by chronic alcoholism, a danger to . . . himself or 

herself . . . .”); Colo. Rev. Stat. Ann. § 27-65-102(10) (West 2022) (“‘Danger to the 

person’s self or others’ means: (a) A person poses a substantial risk of physical harm to the 

person’s self as manifested by evidence of recent threats of . . . serious bodily harm to 

himself or herself . . . .”); Conn. Gen. Stat. Ann. § 17a-495(b) (West 2022) (“For the 

purpose of [Section 17a-498] . . . ‘dangerous to himself or herself . . .’ means there is a 

(Continued)

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68

substantial risk that physical harm will be inflicted by an individual upon his or her own 

person . . . .”); Del. Code Ann. tit. 16, § 5001(4) (West 2022) (“‘Dangerous to self’ means 

that by reason of mental condition there is a substantial likelihood that the person will 

imminently sustain serious bodily harm to oneself. This determination shall take into 

account a person’s history, recent behavior, and any recent act or threat.”); D.C. Code Ann. 

§ 21-545(b)(2) (West 2022) (“If the Court or jury finds that the person is mentally ill and, 

because of that mental illness, is likely to injure himself . . . if not committed, the Court 

may order the person’s commitment . . . .”); Fla. Stat. Ann. § 394.467(1) (West 2022) (“A 

person may be ordered for involuntary inpatient placement for treatment upon a finding . . 

. that . . . [t]here is substantial likelihood that in the near future he or she will inflict serious 

bodily harm on self . . . , as evidenced by recent behavior causing, attempting, or 

threatening such harm . . . .”); Ga. Code Ann. § 37-3-1(9.1) (West 2022) (“‘Inpatient’ 

means a person who is mentally ill and: (A)(i) Who presents a substantial risk of imminent 

harm to that person . . . , as manifested by either recent overt acts or recent expressed threats 

of violence which present a probability of physical injury to that person . . . .”); Haw. Rev. 

Stat. Ann. § 334-1 (West 2022) (“‘Dangerous to self’ means the person recently has: (1) 

Threatened or attempted . . . serious bodily harm . . . .”); Idaho Code Ann. § 66-317(10) 

(West 2022) (“‘Likely to injure himself . . .’ means . . . (a) A substantial risk that physical 

harm will be inflicted by the proposed patient upon his own person, as evidenced by threats 

or attempts to . . . inflict physical harm on himself . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-

119(1) (West 2022) (“‘Person subject to involuntary admission on an inpatient basis’ 

means: (1) A person with mental illness who because of his or her illness is reasonably 

expected, unless treated on an inpatient basis, to engage in conduct placing such person . . 

. in physical harm . . . .”); Ind. Code Ann. § 12-7-2-53 (West 2022) (“‘Dangerous’, for 

purposes of [Section] 12-26, means a condition in which an individual as a result of mental 

illness, presents a substantial risk of: (1) suffering self-caused harm . . . .”); Iowa Code 

Ann. § 229.1(20) (West 2022) (“‘Seriously mentally impaired’ or ‘serious mental 

impairment’ describes the condition of a person with mental illness . . . and who because 

of that illness . . . [i]s likely to physically injure the person’s self . . . if allowed to remain 

at liberty without treatment.”); Kan. Stat. Ann. § 59-2946(f)(3) (West 2022) (“‘Likely to 

cause harm to self . . . ’ means that the person, by reason of the person’s mental disorder: 

(A) Is likely, in the reasonably foreseeable future, to cause substantial physical injury or 

physical abuse to self . . . as evidenced by behavior threatening, attempting or causing such 

injury . . . .”); Me. Rev. Stat. Ann. tit. 34-B, § 3801(4-A) (West 2022) (“‘Likelihood of 

serious harm’ means: . . . [a] substantial risk of physical harm to the person as manifested 

by recent threats of, or attempts at, . . . serious self-inflicted harm.”); Mass. Gen. Laws 

Ann. ch. 123, § 1 (West 2022) (“‘Likelihood of serious harm’, [is defined as] a substantial 

risk of physical harm to the person himself as manifested by evidence of, threats of, or 

attempts at, . . . serious bodily harm.”); Mich. Comp. Laws Ann. § 330.1401(1) (West 

2022) (“‘Person requiring treatment’ means . . . an individual who has mental illness, and 

who as a result of that mental illness can reasonably be expected within the near future to 

(Continued)

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69

intentionally or unintentionally seriously physically injure himself . . . and who has 

engaged in an act or acts or made significant threats that are substantially supportive of the 

expectation.”); Minn. Stat. Ann. § 253B.02 subd. 17a(a) (West 2022) (“A ‘person who 

poses a risk of harm due to a mental illness’ means any person who has [a mental illness] 

and who, due to this impairment, poses a substantial likelihood of physical harm to self . . 

. as demonstrated by . . . a recent attempt or threat to physically harm self.”); Mo. Ann. 

Stat. § 632.005(10) (West 2022) (“‘Likelihood of serious harm’ means . . . a substantial 

risk that serious physical harm will be inflicted by a person upon his own person, as 

evidenced by recent threats, including verbal threats, or attempts to . . . inflict physical 

harm on himself . . . [or] patterns of behavior that historically have resulted in serious harm 

previously being inflicted by a person upon himself.”); Mont. Code Ann. § 53-21-126(1) 

(West 2022) (“In determining whether the respondent requires commitment . . . the court 

shall consider . . . whether the respondent has recently, because of a mental disorder and 

through an act or omission, caused self-injury . . . [and] whether . . . there is an imminent 

threat of injury to the respondent . . . because of the respondent’s acts or omissions.”); Neb. 

Rev. Stat. Ann. § 71-908 (West 2022) (“‘Mentally ill and dangerous person’ means a 

person who is mentally ill . . . and because of such mental illness . . . presents a substantial 

risk of serious harm to himself or herself within the near future as manifested by evidence 

of recent attempts at, or threats of . . . serious bodily harm.”); Nev. Rev. Stat. Ann. § 

433A.0195 (West 2022) (“A person shall be deemed to present a substantial likelihood of 

serious harm to himself or herself . . . if . . . the person is at serious risk of . . . causing 

bodily injury to himself or herself.”); N.H. Rev. Stat. Ann. § 135-C:27 (West 2022) 

(“‘Danger to self’ is established by demonstrating that within 40 days of the completion of 

the petition, the person has inflicted serious bodily injury on himself or has attempted . . . 

serious self-injury and there is a likelihood the act or attempted act will recur if admission 

is not ordered . . . [or] the person has threatened to inflict serious bodily injury on himself 

and there is likelihood that an act or attempt of serious self-injury will occur.”); N.J. Stat. 

Ann. § 30:4-27.2 (West 2022) (“‘Dangerous to self” means that by reason of mental illness 

the person has threatened or attempted . . . serious bodily harm.”); N.M. Stat. Ann. § 43-1-

3(M) (West 2022) (“‘[L]ikelihood of serious harm to oneself’ means that it is more likely 

than not that in the near future the person . . . will cause serious bodily harm to the person’s 

self by violent or other self-destructive means, including grave passive neglect.”); N.Y. 

Mental Hyg. Law § 9.01 (West 2022) (“‘Likelihood to result in serious harm’ or ‘likely to 

result in serious harm’ means (a) a substantial risk of physical harm to the person as 

manifested by threats of or attempts at . . . serious bodily harm or other conduct 

demonstrating that the person is dangerous to himself or herself.”); N.C. Gen. Stat. Ann. § 

122C-3(11) (West 2022) (“‘Dangerous to self’[means] . . . the individual has mutilated 

himself or herself and has attempted to mutilate himself or herself and that there is a

reasonable probability of self-mutilation unless adequate treatment is given.”); Ohio Rev. 

Code Ann. § 5122.01 (West 2022) (“Mentally ill person subject to court order” means a 

person who “[r]epresents a substantial risk of physical harm to self as manifested by 

(Continued)

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70 

3. The individual presents a risk of inflicting substantial bodily harm to others, 

including history and threats;

18

evidence of threats of, or attempts at, . . . serious self-inflicted bodily harm . . . .”); Okla. 

Stat. Ann. tit. 43A, § 1-103 (West 2022) (“Person requiring treatment” means a person who 

“poses a substantial risk of immediate physical harm to self as manifested by evidence or 

serious threats of or attempts at . . . significant self-inflicted bodily harm . . . .”); 50 Pa. 

Stat. & Cons. Stat. Ann. § 7304 (West 2022) (determination of clear and present danger 

when there is “self-mutilation”); S.C. Code Ann. § 44-23-10 (West 2022) (“Likelihood of 

serious harm” means “a substantial risk of physical harm to the person himself as 

manifested by evidence of threats of, or attempts at, . . . serious bodily harm . . . .”); S.D. 

Codified Laws § 27A-1-1(7) (West 2022) (“Danger to self” means a “reasonable 

expectation that the person will inflict serious physical injury upon himself or herself in 

the near future . . . as evidenced by . . . the person’s recent acts or omissions which 

constitute a danger of . . . self-inflicted serious physical injury.”); Tenn. Code Ann. § 33-

6-501 (West 2022) (finding that an individual poses a “substantial likelihood of serious 

harm” when the individual “has threatened or attempted . . . to inflict serious bodily harm” 

to oneself); Tex. Health & Safety Code Ann. § 574.034 (West 2022) (finding 

dangerousness of the individual “is likely to cause serious harm to” oneself); Utah Code 

Ann. § 62A-15-602 (West 2022) (“‘Substantial danger’ means that due to mental illness, 

an individual is at serious risk of . . . serious bodily self-injury . . . .”); Vt. Stat. Ann. tit. 

18, § 7101 (West 2022) (“A danger of harm to himself or herself may be shown by 

establishing that . . . he or she has threatened or attempted . . . serious bodily harm . . . .”); 

Va. Code Ann. § 37.2-817 (West 2022) (finding of dangerousness when “there is a 

substantial likelihood that, as a result of mental illness, the person will, in the near future, 

. . . cause serious physical harm to himself”); Wash. Rev. Code Ann. § 71.05.020 (West 

2022) (“Likelihood of serious harm” means there is a substantial risk that “[p]hysical harm 

will be inflicted by a person upon his or her own person, as evidenced by threats or attempts 

to . . . inflict physical harm on oneself . . . .”); W. Va. Code Ann. § 27-1-12 (West 2022) 

(finding of dangerousness if the “individual has threatened or attempted . . . serious bodily 

harm to himself or herself”); Wis. Stat. Ann. § 51.20 (West 2022) (finding of 

dangerousness when there is “evidence of recent threats of or attempts at . . . serious bodily 

harm); Wyo. Stat. Ann. § 25-10-101 (West 2022) (finding of dangerousness when there is 

“evidence of recent threats of or attempts at . . . serious bodily harm”). 

18 Ala. Code § 22-52-10.4(a)(2) (West 2022) (“[R]espondent poses a real and present threat 

of substantial harm to . . . others . . . .”); Alaska Stat. Ann. § 47.30.915(12(B)) (West 2022) 

(“‘[L]ikely to cause serious harm’ means a person who . . . (B) poses a substantial risk of 

harm to others as manifested by recent behavior causing, attempting, or threatening harm, 

and is likely in the near future to cause physical injury, physical abuse, or substantial 

property damage to another person . . . .”); Ariz. Rev. Stat. Ann. § 36-501(7) (West 2022) 

(Continued) 

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71 

(“‘Danger to others’ means . . . as a result of the person’s mental disorder the person’s 

continued behavior can reasonably be expected, on the basis of competent medical opinion, 

to result in serious physical harm.”); Ark. Code Ann. § 20-47-207(c)(3) (West 2022) (“As 

used in this subsection, ‘a clear and present danger to others’ is established by 

demonstrating that the person has inflicted, attempted to inflict, or threatened to inflict 

serious bodily harm on another, and there is a reasonable probability that the conduct will 

occur if admission is not ordered.”); Cal. Welf. & Inst. Code § 5250(a) (West 2022) (“The 

professional staff of the agency or facility providing evaluation services has analyzed the 

person’s condition and has found the person is, as a result of a mental health disorder or 

impairment by chronic alcoholism, a danger to others . . . .”); Colo. Rev. Stat. Ann. § 27-

65-102(10) (West 2022) (“‘Danger to . . . others’ means: . . . (b) A person poses a 

substantial risk of physical harm to another person or persons, as manifested by evidence 

of recent homicidal or other violent behavior by the person in question . . . .”); Conn. Gen. 

Stat. Ann. § 17a-495(b) (West 2022) (“For the purpose of [Section 17a-498] . . . ‘dangerous 

to . . . others’ means there is a substantial risk that physical harm will be inflicted by an 

individual upon . . . another person . . . .”); Del. Code Ann. tit. 16, § 5001(3) (West 2022) 

(“‘Dangerous to others’ means that by reason of mental condition there is a substantial 

likelihood that the person will inflict serious bodily harm upon another person within the 

immediate future. This determination shall take into account a person’s history, recent 

behavior and any recent act or threat.”); D.C. Code Ann. § 21-545(b)(2) (West 2022) (“If 

the Court or jury finds that the person is mentally ill and, because of that mental illness, is 

likely to injure . . . others if not committed, the Court may order the person’s commitment 

. . . .”); Fla. Stat. Ann. § 394.467(1) (West 2022) (“A person may be ordered for involuntary 

inpatient placement for treatment upon a finding . . . that: (a) He or she has a mental illness 

and because of his or her mental illness . . . [t]here is substantial likelihood that in the near 

future he or she will inflict serious bodily harm on . . . others, as evidenced by recent 

behavior causing, attempting, or threatening such harm . . . .”); Ga. Code Ann. § 37-3-

1(9.1) (West 2022) (“‘Inpatient’ means a person who is mentally ill and: (A)(i) Who 

presents a substantial risk of imminent harm to . . . others, as manifested by either recent 

overt acts or recent expressed threats of violence which present a probability of physical 

injury to . . . other persons . . . .”); Haw. Rev. Stat. Ann. § 334-1 (West 2022) (“‘Dangerous 

to others’ means likely to do substantial physical or emotional injury on another, as 

evidenced by a recent act, attempt or threat.”); Idaho Code Ann. § 66-317(10) (West 2022) 

(“‘Likely to injure . . . others’ means . . . (b) substantial risk that physical harm will be 

inflicted by the proposed patient upon another as evidenced by behavior which has caused 

(Continued) 

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72 

such harm . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-119(1) (West 2022) (“A person with mental 

illness who because of his or her illness is reasonably expected, unless treated on an 

inpatient basis, to engage in conduct placing . . . another in physical harm . . . .”); Ind. Code 

Ann. § 12-7-2-53(a)(2) (West 2022) (“‘Dangerous’, for purposes of [Section] 12-26, means 

a condition in which an individual as a result of mental illness, presents a substantial risk 

of: . . . harming others.”); Iowa Code Ann. § 229.1(20) (West 2022) (“‘Seriously mentally 

impaired’ or ‘serious mental impairment’ describes the condition of a person with mental 

illness and because of that illness . . . is likely to physically injure . . . others if allowed to 

remain at liberty without treatment . . . .”); Kan. Stat. Ann. § 59-2946(f) (West 2022) 

(“‘Likely to cause harm to . . . others’ means that the person, by reason of the person’s 

mental disorder: (A) Is likely, in the reasonably foreseeable future, to cause substantial 

physical injury or physical abuse to . . . others . . . as evidenced by behavior threatening, 

attempting or causing such injury [or] abuse . . . .”); Me. Rev. Stat. Ann. tit. 34-B, § 3801(4-

A) (West 2022) (“‘Likelihood of serious harm’ means: . . . [a] substantial risk of physical 

harm to other persons as manifested by recent homicidal or violent behavior.”); Mass. Gen. 

Laws Ann. ch. 123, § 1 (West 2022) (“‘Likelihood of serious harm’, [defined as] . . . a 

substantial risk of physical harm to other persons as manifested by evidence of homicidal 

or other violent behavior.”); Mich. Comp. Laws Ann. § 330.1401(1) (West 2022) (“‘Person 

requiring treatment’ means . . . an individual who has mental illness, and who as a result 

of that mental illness can reasonably be expected within the near future to intentionally or 

unintentionally seriously physically injure . . . another individual . . . and who has engaged 

in an act or acts or made significant threats that are substantially supportive of the 

expectation.”); Minn. Stat. Ann. § 253B.02 subd. 17a(a) (West 2022) (“A ‘person who 

poses a risk of harm due to a mental illness’ means any person who has [a mental illness] 

and who, due to this impairment, poses a substantial likelihood of physical harm to . . . 

others as demonstrated by . . . a recent attempt or threat to physically harm . . . others.”); 

Miss. Code Ann. § 41-21-61(f) (West 2022) (“‘Person with mental illness’ means any 

person who has a substantial psychiatric disorder . . . which . . . poses a substantial 

likelihood of physical harm to . . . others as demonstrated by a recent attempt or threat to 

physically harm . . . others.”); Mo. Ann. Stat. § 632.005(10) (West 2022) (“‘Likelihood of 

serious harm’” means . . . a substantial risk that serious physical harm will be inflicted by 

a person upon another as evidenced by recent overt acts, behavior or threats, including 

verbal threats, which have caused such harm or which would place a reasonable person in 

reasonable fear of sustaining such harm . . . [or] patterns of behavior that historically have 

resulted in physical harm previously being inflicted by a person upon another person.”); 

(Continued) 

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73

Mont. Code Ann. 53-21-126(1) (West 2022) (“In determining whether the respondent 

requires commitment . . . the court shall consider . . . whether the respondent has recently, 

because of a mental disorder and through an act or omission, caused . . . injury to others . . 

. [and] whether . . . there is an imminent threat of injury to . . . others . . . because of the 

respondent’s acts or omissions.”); Neb. Rev. Stat. Ann. § 71-908 (West 2022) (“‘Mentally 

ill and dangerous person’ means a person who is mentally ill . . . and because of such mental 

illness . . . presents a substantial risk of serious harm to another person or persons within 

the near future as manifested by evidence of recent violent acts or threats of violence or by 

placing others in reasonable fear of such harm.”); Nev. Rev. Stat. Ann. § 433A.0195 (West 

2022) (“A person shall be deemed to present a substantial likelihood of serious harm to . . 

. others if . . . the person is at serious risk of . . . attempting . . . homicide [or] causing bodily 

injury to . . . others.”); N.H. Rev. Stat. Ann. § 135-C:27 (West 2022) (“‘Danger to others’ 

is established by demonstrating that within 40 days of the completion of the petition, the 

person has inflicted, attempted to inflict, or threatened to inflict serious bodily harm on 

another.”); N.M. Stat. Ann. § 43-1-3(N) (West 2022) (“‘[L]ikelihood of serious harm to 

others’ means that it is more likely than not that in the near future a person will inflict 

serious, unjustified bodily harm on another person or commit a criminal sexual offense, as 

evidenced by behavior causing, attempting or threatening such harm, which behavior gives 

rise to a reasonable fear of such harm from the person.”); N.Y. Mental Hyg. Law § 9.01 

(West 2022) (“‘[L]ikelihood to result in serious harm’ or ‘likely to result in serious harm’ 

means a substantial risk of physical harm to other persons manifested by homicidal or other 

violent behavior.”); N.C. Gen. Stat. Ann. § 122C-3(11) (West 2022) (“‘Dangerous to 

others’ [means] within the relevant past, the individual has inflicted or attempted to inflict 

or threatened to inflict serious bodily harm on another, or has acted in such a way as to 

create a substantial risk of serious bodily harm to another . . . that there is a reasonable 

probability that this conduct will be repeated.”); N.D. Cent. Code Ann. § 25-03.1-02 (West 

2022) (finding of dangerousness when there is a substantial likelihood of “[k]illing or 

inflicting serious bodily harm on another individual . . . , as manifested by acts or threats”); 

Ohio Rev. Code Ann. § 5122.01 (West 2022) (“Mentally ill person subject to court order” 

means a person who “[r]epresents a substantial risk of physical harm to others as 

manifested by evidence of recent homicidal or other violent behavior, [or] evidence of 

recent threats that place another in reasonable fear of violent behavior and serious physical 

harm . . . .”); Okla. Stat. Ann. tit. 43A, § 1-103 (West 2022) (“Person requiring treatment” 

means a person who “poses a substantial risk of immediate physical harm to another person 

or persons as manifested by evidence of violent behavior directed toward another person 

(Continued)

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74

or persons . . . .”); 50 Pa. Stat. & Cons. Stat. Ann. § 7304 (West 2022) (determination of 

clear and present danger when there is “serious bodily harm to others”); 40.1 R.I. Gen. 

Laws Ann. § 40.1-5-2 (West 2022) (“Likelihood of serious harm” means a “substantial risk 

of physical harm to other persons as manifested by behavior or threats evidencing 

homicidal or other violent behavior . . . .”); S.C. Code Ann. § 44-23-10 (West 2022) 

(“Likelihood of serious harm” means “a substantial risk of physical harm to other persons 

as manifested by evidence of homicidal or other violent behavior and serious harm to them 

. . . .”); S.D. Codified Laws § 27A-1-1(7) (West 2022) (“Danger to others” means a 

“reasonable expectation that the person will inflict serious physical injury upon another 

person in the near future . . . .”); Tenn. Code Ann. § 33-6-501 (West 2022) (finding that 

an individual poses a “substantial likelihood of serious harm” when the individual “has 

threatened or attempted homicide or other violent behavior” or “has placed others in 

reasonable fear of violent behavior and serious physical harm to them”); Tex. Health & 

Safety Code Ann. § 574.034 (West 2022) (finding dangerousness of the individual “is 

likely to cause serious harm to others”); Utah Code Ann. § 62A-15-602 (West 2022) 

(“‘Substantial danger’ means that due to mental illness, an individual is at serious risk of . 

. . causing or attempting to cause serious bodily injury to another individual . . . .”); Vt. 

Stat. Ann. tit. 18, § 7101 (West 2022) (finding of dangerousness when it is established that 

an individual “has inflicted or attempted to inflict bodily harm on another” or “by his or 

her threats or actions he or she has placed others in reasonable fear of physical harm to 

themselves”); Va. Code Ann. § 37.2-817 (West 2022) (finding of dangerousness when 

“there is a substantial likelihood that, as a result of mental illness, the person will, in the 

near future, . . . cause serious physical harm to . . . others as evidenced by recent behavior 

causing, attempting, or threatening harm”); Wash. Rev. Code Ann. § 71.05.020 (West 

2022) (“Likelihood of serious harm” means there is a substantial risk that “physical harm 

will be inflicted by a person upon another, as evidenced by behavior which has caused such 

harm or which places another person or persons in reasonable fear of sustaining such harm 

. . . .”); W. Va. Code Ann. § 27-1-12 (West 2022) (finding of dangerousness if the 

“individual has inflicted or attempted to inflict bodily harm on another” or “by threat or 

action, has placed others in reasonable fear of physical harm to themselves”); Wis. Stat. 

Ann. § 51.20 (West 2022) (finding of dangerousness when there is “evidence of recent 

homicidal or other violent behavior, or by evidence that others are placed in reasonable 

fear of violent behavior and serious physical harm to them, as evidenced by a recent overt 

act, attempt or threat to do serious physical harm”); Wyo. Stat. Ann. § 25-10-101 (West 

2021) (finding of dangerousness when there is evidence of “a recent overt homicidal act, 

(Continued)

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75 

4. The individual’s behavior places others in reasonable fear of substantial bodily 

harm;

19

5. The individual is unable to protect and care for himself, including inability to 

provide his basic physical needs;

20

attempt or threat or other violent act, attempt or threat which places others in reasonable 

fear of serious physical harm to them”).

19 Colo. Rev. Stat. Ann. § 27-65-102(10) (West 2022) (“Danger to the person’s self 

or others’ [includes] . . . evidence that others are placed in reasonable fear of violent 

behavior and serious physical harm to them, as evidenced by a recent overt act, attempt, or 

threat to do serious physical harm by the person in question.”); Idaho Code Ann. § 66-

317(10)(b) (West 2022) (“‘Likely to injure himself or others’ [includes] . . . [a] substantial 

risk that physical harm will be inflicted by the proposed patient upon another as evidenced 

by behavior . . . that places another person or persons in reasonable fear of sustaining such 

harm . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-119(1) (West 2022) (finding of dangerousness 

when,“because of his or her illness, [he or she] is reasonably expected, unless treated on 

an inpatient basis, to engage in conduct placing . . . another in . . . reasonable expectation 

of being physically harmed”); Me. Rev. Stat. Ann. tit. 34-B, § 3801(4-A) (West 2022) 

(“‘Likelihood of serious harm’ means: . . . [a] substantial risk of physical harm to other 

person as manifested by . . . recent conduct placing others in reasonable fear of serious 

physical harm.”); Mass. Gen. Laws Ann. ch. 123, § 1 (West 2022) (“‘Likelihood of serious 

harm’, [means] . . . a substantial risk of physical harm to other persons as manifested by . . 

. evidence that others are placed in reasonable fear of violent behavior and serious physical 

harm to them.”); N.Y. Mental Hyg. Law § 9.01 (West 2022) (“‘Likelihood to result in 

serious harm’ or ‘likely to result in serious harm’ means a substantial risk of physical harm 

to other persons manifested by homicidal or other violent behavior by which others are 

placed in reasonable fear of serious physical harm.”).

20 Alaska Stat. Ann. § 47.30.915(9)(A) (West 2022) (“‘[G]ravely disabled’ means a 

condition in which a person as a result of mental illness (A) is in danger of physical harm 

arising from such complete neglect of basic needs for food, clothing, shelter, or personal 

safety as to render serious accident, illness, or death highly probable if care by another is 

not taken . . . .”); Ariz. Rev. Stat. Ann. § 36-501(15) (West 2022) (“‘Grave disability’ 

means a condition evidenced by behavior in which a person, as a result of a mental disorder, 

is likely to come to serious physical harm or serious illness because the person is unable to 

provide for the person’s own basic physical needs.”); Ark. Code Ann. § 20-47-207(c)(2)(C) 

(West 2022) (“The person’s recent behavior or behavior history demonstrates that he or 

she so lacks the capacity to care for his or her own welfare that there is a reasonable 

(Continued) 

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76 

probability of death, serious bodily injury, or serious physical or mental debilitation if 

admission is not ordered . . . .”); Cal. Welf. & Inst. Code § 5008 (West 2022) (“For purposes 

of [Section 5250] ‘gravely disabled’ means a condition in which a person, as a result of 

impairment by chronic alcoholism, is unable to provide for his or her basic personal needs 

for food, clothing, or shelter.”); Colo. Rev. Stat. Ann.§ 24-65-102(17) (West 2022) 

(“‘Gravely disabled’ means a condition in which a person, as a result of a mental health 

disorder, is incapable of making informed decisions about or providing for the person’s 

essential needs without significant supervision and assistance from other people. As a result 

of being incapable of making these informed decisions, a person who is gravely disabled 

is at risk of substantial bodily harm, dangerous worsening of any concomitant serious 

physical illness, significant psychiatric deterioration, or mismanagement of the person’s 

essential needs that could result in substantial bodily harm.”); Conn. Gen. Stat. Ann. § 17a495(b) (West 2022) (“For the purpose of [Section 17a-498] . . . ‘gravely disabled’ means 

that a person, as a result of mental or emotional impairment, is in danger of serious harm 

as a result of an inability or failure to provide for his or her own basic human needs such 

as essential food, clothing, shelter or safety . . . .”); Fla. Stat. Ann. § 394.467(1) (West 

2022) (“He or she is incapable of surviving alone or with the help of willing and responsible 

family or friends, including available alternative services, and, without treatment, is likely 

to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal 

poses a real and present threat of substantial harm to his or her well-being . . . .”); Ga. Code 

Ann. § 37-3-1(9.1) (West 2022) (“‘Inpatient’ means a person who is mentally ill and: . . . 

(A)(ii) Who is so unable to care for that person’s own physical health and safety as to create 

an imminently life-endangering crisis . . . .”); Haw. Rev. Stat. Ann. § 334-1 (West 2022) 

(“‘Dangerous to self’ means the person recently has: . . . (2) Behaved in such a manner as 

to indicate that the person is unable, without supervision and the assistance of others, to 

satisfy the need for nourishment, essential medical care, including treatment for a mental 

illness, shelter or self-protection, so that it is probable that death, substantial bodily injury, 

or serious physical debilitation or disease will result unless adequate treatment is 

afforded.”); Idaho Code Ann. § 66-317(12) (West 2022) (“‘Gravely disabled’ means the 

condition a person who, as the result of mental illness, has demonstrated an inability to: (a) 

Attend to basic personal needs, such as nourishment, or essential clothing, medical care, 

shelter or safety . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-119(2) (West 2022) (“‘Person subject 

to involuntary admission on an inpatient basis’ means: . . . (2) A person with mental illness 

who because of his or her illness is unable to provide for his or her basic physical needs so 

as to guard himself or herself from serious harm without the assistance of family or others, 

unless treated on an inpatient basis . . . .”); Ind. Code Ann. § 12-7-2-96 (West 2022)

(“‘Gravely disabled’”, for purposes of [section] 12-26, means a condition in which an 

individual, as a result of mental illness, is in danger of coming to harm because the 

individual: (1) is unable to provide for that individual’s food, clothing, shelter, or other 

essential human needs; or (2) has a substantial impairment or an obvious deterioration of 

that individual’s judgment, reasoning, or behavior that results in the individual’s inability 

(Continued) 

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77 

to function independently.”); Iowa Code Ann. § 229.1(20) (West 2022) (“‘Seriously 

mentally impaired’ or ‘serious mental impairment’ describes the condition of a person with 

mental illness and because of that illness lacks sufficient judgment to make responsible 

decisions with respect to the person’s hospitalization or treatment, and . . . [i]s unable to 

satisfy the person’s needs for nourishment, clothing, essential medical care, or shelter so 

that it is likely that the person will suffer physical injury, physical debilitation, or death . . 

. .”); Kan. Stat. Ann. § 59-2946(f)(3) (West 2022) (“‘Likely to cause harm to self or others’ 

means that the person, by reason of the person’s mental disorder: . . . (B) is substantially 

unable, except for reason of indigency, to provide for any of the person’s basic needs, such 

as food, clothing, shelter, health or safety, causing a substantial deterioration of the 

person’s ability to function on the person’s own.”); Mass. Gen. Laws Ann. ch. 123, § 1 

(West 2022) (“‘Likelihood of serious harm,’ [means] . . . a substantial risk of physical 

impairment or injury to the person himself as manifested by evidence that such person’s 

judgment is so affected that he is unable to protect himself in the community.”); Mich. 

Comp. Laws Ann. § 330.1401(1) (West 2022) (“‘Person requiring treatment’ means . . . an 

individual who has mental illness, and who as a result of that mental illness is unable to 

attend to those of his or her basic physical needs such as food, clothing, or shelter that must 

be attended to in order for the individual to avoid serious harm in the near future, and who 

has demonstrated that inability by failing to attend to those basic physical needs.”); Minn. 

Stat. Ann. § 253B.02 subd. 17a(a) (West 2022) (“A ‘person who poses a risk of harm due 

to a mental illness’ means any person who has [a mental illness] and who, due to this 

impairment, poses a substantial likelihood of physical harm to self . . . as demonstrated by 

. . . a failure to obtain necessary food, clothing, shelter, or medical care as a result of the 

impairment; [or] an inability for reasons other than indigence to obtain necessary food, 

clothing, shelter, or medical care as a result of the impairment and it is more probable than 

not that the person will suffer substantial harm, significant psychiatric deterioration or 

debilitation, or serious illness, unless appropriate treatment and services are provided.”); 

Miss. Code Ann. § 41-21-61(f) (West 2022) (“‘Person with mental illness’ means any 

person who has a substantial psychiatric disorder . . . which . . . poses a substantial 

likelihood of physical harm to himself . . . as demonstrated by . . . a failure to provide 

necessary food, clothing, shelter or medical care for himself, as a result of the 

impairment.”); Mo. Ann. Stat. § 632.005(10) (West 2022) (“‘Likelihood of serious harm’” 

means . . . a substantial risk that serious physical harm to a person will result or is occurring 

because of an impairment in his capacity to make decisions with respect to his 

hospitalization and need for treatment as evidenced by his current mental disorder or 

mental illness which results in an inability to provide for his own basic necessities of food, 

clothing, shelter, safety or medical care or his inability to provide for his own mental health 

care which may result in a substantial risk of serious physical harm . . . [or] patterns of 

behavior [of the same previously occuring].”); Mont. Code Ann. § 53-21-126(1)(a) (West 

2022) (“In determining whether the respondent requires commitment, . . . the court shall 

consider . . . whether the respondent, because of a mental disorder, is substantially unable 

(Continued) 

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78 

to provide for the respondent’s own basic needs of food, clothing, shelter, health, or 

safety.”); Neb. Rev. Stat. Ann. § 71-908 (West 2022) (“‘Mentally ill and dangerous person’ 

means a person who is mentally ill . . . and because of such mental illness . . . presents a 

substantial risk of serious harm to himself or herself within the near future as manifested 

by . . . evidence of inability to provide for his or her basic human needs, including food, 

clothing, shelter, essential medical care, or personal safety.”); Nev. Rev. Stat. Ann. § 

433A.0195 (West 2022) (“A person shall be deemed to present a substantial likelihood of 

serious harm to himself or herself . . . if . . . the person is at serious risk of . . . incurring a 

serious injury, illness or death resulting from complete neglect of basic needs for food, 

clothing, shelter or personal safety.”); N.J. Stat. Ann. § 30:4-27.2 (West 2022) 

(“‘Dangerous to self’ means that by reason of mental illness the person has . . . behaved in 

such a manner as to indicate that the person is unable to satisfy his need for nourishment, 

essential medical care or shelter, so that it is probable that substantial bodily injury, serious 

physical harm, or death will result within the reasonably foreseeable future.”); N.C. Gen. 

Stat. Ann. § 122C-3(11) (West 2022) (“‘Dangerous to self’ [means] . . . the individual 

would be unable, without care, supervision, and the continued assistance of others not 

otherwise available, to exercise self-control, judgment, and discretion in the conduct of the 

individual’s daily responsibilities and social relations, or to satisfy the individual’s need 

for nourishment, personal or medical care, shelter, or self-protection and safety.”); N.D. 

Cent. Code Ann. § 25-03.1-02 (West 2022) (“Serious risk of harm” includes “[s]ubstantial 

deterioration in physical health, substantial injury, disease, or death, based upon recent 

poor self-control or judgment in providing one’s shelter, nutrition, or personal care . . . .”); 

Ohio Rev. Code Ann. § 5122.01 (West 2022) (“Mentally ill person subject to court order” 

means a person who “[r]epresents a substantial and immediate risk of serious physical 

impairment or injury to self as manifested by evidence that the person is unable to provide 

for and is not providing for the person’s basic physical needs because of the person’s 

mental illness and that appropriate provision for those needs cannot be made immediately 

available in the community . . . .”); Okla. Stat. Ann. tit. 43A, § 1-103 (West 2022) (“Person 

requiring treatment” means a person who “poses a substantial risk of immediate serious 

physical injury to self or death as manifested by evidence that the person is unable to 

provide for and is not providing for his or her basic physical needs.”); Or. Rev. Stat. Ann. 

§ 426.005 (West 2022) (finding that involuntary commitment is warranted when the 

individual is “[u]nable to provide for basic personal needs that are necessary to avoid 

serious physical harm in the near future, and is not receiving such care as is necessary to 

avoid such harm”); 50 Pa. Stat. & Cons. Stat. Ann. § 7304 (West 2022) (determination of 

clear and present danger when there is evidence of an “inability to care for himself, creating 

a danger of death or serious harm to himself”); S.C. Code Ann. § 44-23-10 (West 2022) 

(“Likelihood of serious harm” means “a very substantial risk of physical impairment or 

injury to the person himself as manifested by evidence that the person is gravely disabled 

and that reasonable provision for the person’s protection is not available in the 

community.”); S.D. Codified Laws § 27A-1-1(7) (West 2022) (finding of dangerousness

(Continued) 

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79 

6. The individual presents a danger to persons in his care, including inability to 

provide for their basic physical needs:21

warranted when there has been demonstrated “an inability to provide for some basic human 

needs such as food, clothing, shelter, essential medical care, or personal safety”); Tex. 

Health & Safety Code Ann. § 574.034 (West 2022) (finding of dangerousness when an 

individual is “experiencing substantial mental or physical deterioration of the . . . ability 

to function independently, which is exhibited by the . . . inability, except for reasons of 

indigence, to provide for the . . . basic needs, including food, clothing, health, or safety”); 

Utah Code Ann. § 62A-15-602 (West 2022) (“‘Substantial danger’ means that due to 

mental illness, an individual is at serious risk of . . . serious bodily injury because the 

individual is incapable of providing the basic necessities of life, including food, clothing, 

or shelter . . . .”); Vt. Stat. Ann. tit. 18, § 7101 (West 2022) (finding of dangerousness

warranted when it is established that an individual “has behaved in such a manner as to 

indicate that he or she is unable, without supervision and the assistance of others, to satisfy 

his or her need for nourishment, personal or medical care, shelter, or self-protection and 

safety, so that it is probable that death, substantial physical bodily injury, serious mental 

deterioration, or serious physical debilitation or disease will ensue unless adequate 

treatment is afforded”); Va. Code Ann. § 37.2-817 (West 2022) (finding of dangerousness 

warranted when “there is a substantial likelihood that, as a result of mental illness, the 

person will, in the near future, . . . suffer serious harm due to his lack of capacity to protect 

himself from harm or to provide for his basic human needs”);Wash. Rev. Code Ann. § 

71.05.020 (West 2022) (“Likelihood of serious harm” means an individual is “in danger of 

serious physical harm resulting from a failure to provide for his or her essential human 

needs of health or safety . . . .”); W. Va. Code Ann. § 27-1-12 (West 2022) (finding of 

dangerousness warranted if the “individual is behaving in a manner as to indicate that he 

or she is unable, without supervision and the assistance of others, to satisfy his or her need 

for nourishment, medical care, shelter or self-protection and safety”); Wis. Stat. Ann. § 

51.20 (West 2022) (finding of dangerousness warranted when there is evidence that the 

individual is “unable to satisfy basic needs for nourishment, medical care, shelter or safety 

without prompt and adequate treatment”); Wyo. Stat. Ann. § 25-10-101 (West 2022) 

(finding of dangerousness when there is evidence of an inability to “satisfy basic needs for 

nourishment, essential medical care, shelter or safety”).

21 Iowa Code Ann. § 229.1(20) (West 2022) (“‘Seriously mentally impaired’ or 

‘serious mental impairment’ describes the condition of a person with mental illness [who] 

because of that illness . . . [i]s likely to inflict serious emotional injury on members of the 

person’s family or others who lack reasonable opportunity to avoid contact with the person 

. . . .”); Ky. Rev. Stat. Ann. § 202A.011(2) (West 2022) (“‘Danger’ or ‘threat of danger to 

self, family, or others’ means substantial physical harm or threat of substantial physical 

harm upon self, family, or others, including actions which deprive . . . family, or others of 

the basic means of survival including provision for reasonable shelter, food, or clothing.”); 

(Continued) 

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80 

7. The individual has impaired judgment;22

8. The individual refuses or is unable to consent to voluntary treatment, including 

inability to recognize or understand his need for care;23

Vt. Stat. Ann. tit. 18, § 7101 (West 2022) (finding of dangerousness by showing that “by 

his or her actions or inactions he or she has presented a danger to persons in his or her 

care”); W. Va. Code Ann. § 27-1-12 (West 2022) (finding of dangerousness when the 

“individual, by action or inaction, presents a danger to . . . others in his or her care”). 

22 Alaska Stat. Ann. § 47.30.915(9)(B) (West 2022) (“‘[G]ravely disabled’ means a 

condition in which a person as a result of mental illness . . . (B) will, if not treated, suffer 

or continue to suffer severe and abnormal mental, emotional, or physical distress, and this 

distress is associated with significant impairment of judgment, reason, or behavior causing 

a substantial deterioration of the person’s previous ability to function independently . . . 

.”); Idaho Code Ann. § 66-317(11) (West 2022) (“‘Mentally ill’ means a condition resulting 

in a substantial disorder of thought, mood, perception, or orientation that grossly impairs 

judgment, behavior, capacity to recognize and adapt to reality and requires care and 

treatment at a facility or through outpatient treatment.”); Ind. Code Ann. § 12-7-2-96 (West 

2022) (“‘Gravely disabled’, for purposes of [section] 12-26, means a condition in which an 

individual, as a result of mental illness, is in danger of coming to harm because . . . [of] a 

substantial impairment or an obvious deterioration of that individual’s judgment, 

reasoning, or behavior that results in the individual’s inability to function independently.”); 

N.D. Cent. Code Ann. § 25-03.1-02 (West 2022) (looking at “[e]vidence of objective facts 

to establish the loss of cognitive or volitional control over the individual’s thoughts or 

actions” when determining dangerousness); Wash. Rev. Code Ann. § 71.05.020(24) (West 

2022) (finding of “grave disability” when the individual “manifests severe deterioration in 

routine functioning evidenced by repeated and escalating loss of cognitive or volitional 

control over his or her actions”); Wis. Stat. Ann. § 51.20(1) (West 2022) (considering 

evidence of “impaired judgment” when determining dangerousness). 

23 Ala. Code § 22-52-10.4(a)(4) (West 2022) (“Respondent is unable to make a 

rational and informed decision as to whether or not treatment for mental illness would be 

desirable.”); Alaska Stat. Ann. § 47.30.755(b) (West 2022) (“If the court finds . . . that the 

respondent has been advised of and refused voluntary treatment through the alternative, the 

court may order the less restrictive alternative treatment . . . .”); Ariz. Rev. Stat. Ann. § 36-

540 (West 2022) (“If the court finds . . . [the individual] . . . is either unwilling or unable 

to accept voluntary treatment, the court shall order the patient to undergo . . . (1) . . . 

outpatient treatment, (2) . . . combined inpatient and outpatient treatment, [or] (3) inpatient 

treatment in a mental health treatment agency . . . [or] in a hospital . . .”); Ark. Code Ann. 

(Continued) 

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81 

§ 20-47-207(c)(2)(D)(i) (West 2022) (“The person’s understanding of the need for 

treatment is impaired to the point that he or she is unlikely to participate in treatment 

voluntarily . . . .”); Cal. Welf. & Inst. Code § 5250(c) (West 2022) (“The person has been 

advised of the need for, but has not been willing or able to accept, treatment on a voluntary 

basis.”); Conn. Gen. Stat. Ann. § 17a-495(b) (West 2022) (“Gravely Disabled” includes 

that “hospital treatment is necessary and available and [the individual] is mentally 

incapable of determining whether or not to accept such treatment because his judgment is 

impaired by his psychiatric disabilities.”); Del. Code Ann. tit. 16, § 5011(a)(4) (West 2022) 

(“The individual has declined voluntarily inpatient treatment, or lacks the capacity to 

knowingly and voluntarily consent to inpatient treatment. When evaluating capacity, the 

court shall consider an individual’s ability to understand the significant consequences, 

benefits, risks, and alternatives that result from the individual’s decision to voluntarily 

request or decline inpatient treatment.”); Fla. Stat. Ann. § 394.467(1) (West 2022) (“A 

person may be ordered for involuntary inpatient placement for treatment upon a finding . . 

. that: (a) He or she has a mental illness and because of his or her mental illness: (1.a.) He 

or she has refused voluntary inpatient placement for treatment after sufficient and 

conscientious explanation and disclosure of the purpose of inpatient placement for 

treatment; or (b.) He or she is unable to determine for himself or herself whether inpatient 

placement is necessary . . . .”); Idaho Code Ann. § 66-317(10)(c) (West 2022) (“The 

proposed patient lacks insight into his need for treatment and is unable or unwilling to 

comply with treatment . . . .”); id. § 66-317(12) (“‘Gravely disabled’ means a person who, 

as the result of mental illness, is: . . . [unable to] (d) [r]ecognize that he is experiencing 

symptoms of a serious mental illness and lacks insight into his need for treatment and is 

unable or unwilling to comply with treatment . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-119(3) 

(West 2022) (“A person with mental illness who: (i) refuses treatment or is not adhering 

adequately to prescribed treatment; (ii) because of the nature of his or her illness, is unable 

to understand his or her need for treatment . . . .”); Iowa Code Ann. § 229.1(20) (West 

2022) (“‘Seriously mentally impaired’ or ‘serious mental impairment’ describes the 

condition of a person with mental illness and because of that illness lacks sufficient 

judgment to make responsible decisions with respect to the person’s hospitalization or 

treatment . . . .”); Kan. Stat. Ann. § 59-2946(f) (West 2022) (“(1) ‘Mentally ill person 

subject to involuntary commitment for care and treatment’ means a mentally ill person, . . 

. who also lacks capacity to make an informed decision concerning treatment . . . . (2) 

‘Lacks capacity to make an informed decision concerning treatment’ means that the person, 

by reason of the person’s mental disorder, is unable, despite conscientious efforts at 

explanation, to understand basically the nature and effects of hospitalization or treatment 

or is unable to engage in a rational decision-making process regarding hospitalization or 

treatment, as evidenced by an inability to weigh the possible risks and benefits.”); Md. 

Code Ann., Health-Gen. § 10-632(e)(2) (West 2022) (“The hearing officer shall . . . [o]rder 

the release of the individual . . . unless . . . the individual is unable or unwilling to be 

voluntarily admitted to the facility.”); Mich. Comp. Laws Ann. § 330.1401(1) (West 2022) 

(Continued) 

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9. The individual has a history of mental illness, including prior treatment and 

hospitalization;24

(“‘Person requiring treatment’ means . . . an individual who has mental illness, whose 

judgment is so impaired by that mental illness, and whose lack of understanding of the 

need for treatment has caused him or her to demonstrate an unwillingness to voluntarily 

participate in or adhere to treatment that is necessary.”); N.D. Cent. Code Ann. § 25-03.1-

02 (West 2022) (looking at “the effect of the individual’s mental condition on the 

individual’s ability to consent” when determining dangerousness); Ohio Rev. Code Ann. 

§ 5122.01 (West 2022) (considering whether “as a result of the person’s mental illness,” 

the individual “is unlikely to voluntarily participate in necessary treatment”); S.C. Code 

Ann. § 44-17-580 (West 2022) (allowing involuntary commitment if the individual “lacks 

sufficient insight or capacity to make responsible decisions with respect to his treatment”); 

Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(iii) (West 2022) (considering whether 

the individual is “unable to make a rational and informed decision as to whether or not to 

submit to treatment” when determining dangerousness); Utah Code Ann. § 62A-15-

631(16)(a)(iii) (West 2022) (considering whether the individual “lacks the ability to engage 

in a rational decision-making process regarding the acceptance of mental treatment as 

demonstrated by evidence of inability to weigh the possible risks of accepting or rejecting 

treatment” when determining whether involuntary commitment is appropriate).

24 N.D. Cent. Code Ann. § 25-03.1-02 (West 2022) (looking at “patterns in the 

individual’s treatment history” when determining if there is a “serious risk of harm”); Okla. 

Stat. Ann. tit. 43A, § 1-103 (West 2022) (“The mental health or substance abuse history of 

the person may be used as part of the evidence to determine whether the person is a person 

requiring treatment . . . .”); Or. Rev. Stat. Ann. § 426.005 (West 2022) (“Person with mental 

illness” means a person “[w]ho, within the previous three years, has twice been placed in 

a hospital or approved inpatient facility” or “[w]ho is exhibiting symptoms or behavior 

substantially similar to those that preceded and led to one or more of the hospitalizations . 

. . .”); S.D. Codified Laws § 27A-1-1 (West 2022) (looking at a “person’s treatment 

history” when considering if the individual is a danger to self or others); Va. Code Ann. § 

37.2-817 (West 2022) (looking at “any past mental health treatment of the person” and 

“any health records available” when determining dangerousness); W. Va. Code Ann. § 27-

1-12(b) (West 2022) (“In making the ‘likely to cause serious harm’ determination, . . . 

decisionmakers should utilize all available information, including psychosocial, medical, 

hospitalization and psychiatric information and including the circumstances of any 

previous commitments or convalescent or conditional releases that are relevant to a current 

situation . . . .”); Wyo. Stat. Ann. § 25-10-101 (West 2022) (allowing a court to “consider 

a person’s mental health history in determining” dangerousness).

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10. The individual has a history of noncompliance with mental health treatments;25

11. The individual’s need for treatment cannot be adequately addressed by family, 

available community programs, or less-restrictive treatment alternatives;26 and

25 Ark. Code Ann. § 20-47-207(c)(2)(D)(iii) (West 2022) (“‘[A] clear and present 

danger to himself or herself’ is established by demonstrating that: . . . (D)(iii) [t]he person’s 

noncompliance with treatment has been a factor in the individual’s placement in a 

psychiatric hospital, prison, or jail at least two (2) times within the last forty-eight (48) 

months or has been a factor in the individual’s committing one (1) or more acts, attempts, 

or threats of serious violent behavior within the last forty-eight (48) months.”); 405 Ill. 

Comp. Stat. Ann. 5/1-119 (West 2022) (“‘Person subject to involuntary admission on an 

inpatient basis’ means: . . . (3) A person with mental illness who: (i) refuses treatment or 

is not adhering adequately to prescribed treatment; (ii) because of the nature of his or her 

illness, is unable to understand his or her need for treatment; and (iii) if not treated on an 

inpatient basis, is reasonably expected, based on his or her behavioral history, to suffer 

mental or emotional deterioration . . . .”); Ohio Rev. Code Ann. § 5122.01 (West 2022) 

(“Mentally ill person subject to court order” means that the person “would benefit from 

treatment as manifested by evidence” that the “person has a history of lack of compliance 

with treatment for mental illness . . . .”). 

26 Alaska Stat. Ann. § 47.30.755(b) (West 2022) (“If the court finds that there is a 

less restrictive alternative available . . . the court may order the less restrictive alternative 

treatment . . . .”); Ariz. Rev. Stat. Ann. § 36-540(B) (West 2022) (“The court shall order 

the least restrictive treatment available.”); Cal. Welf. & Inst. Code § 5250(d) (West 2022) 

(“(1) [A] person is not ‘gravely disabled’ if that person can survive safely without 

involuntary detention with the help of responsible family, friends, or others who are both 

willing and able to help provide for the person’s basic personal needs for food, clothing, or 

shelter. (2) However, unless they specifically indicate in writing their willingness and 

ability to help, family, friends, or others shall not be considered willing or able to provide 

this help.”); Conn. Gen. Stat. Ann. § 17a-498(c)(3) (West 2022) (“[T]he court shall make 

an order for his or her commitment, considering whether or not a less restrictive placement 

is available . . . .”); Del. Code Ann. tit. 16, § 5011(a) (West 2022) (“An individual shall be 

involuntarily committed for inpatient treatment only if . . . (3) All less restrictive 

alternatives have been considered and determined to be clinically inappropriate at the time 

of the hearing . . . .”); D.C. Code Ann. § 21-545(b)(2) (West 2022) (“[T]he Court may 

order the person’s commitment to the Department or to any other facility, hospital, or 

mental health provider that the Court believes is the least restrictive alternative consistent 

with the best interests of the person and the public.”); Fla. Stat. Ann. § 394.467(1) (West 

2022) (“A person may be ordered for involuntary inpatient placement for treatment upon a 

finding . . . that: . . . (b) All available less restrictive treatment alternatives that would offer 

an opportunity for improvement of his or her condition have been judged to be 

(Continued) 

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12. The individual has a history of committing, or has recently committed, dangerous 

overt acts or has exhibited grossly disturbed behavior or harmful sexual 

conduct.

27

inappropriate.”); Haw. Rev. Stat. Ann. § 334-60.2(3) (West 2022) (A court must find 

“[t]hat the person is in need of care or treatment, or both, and there is no suitable alternative 

available through existing facilities and programs which would be less restrictive than 

hospitalization.”); Idaho Code Ann. § 66-329(11) (West 2022) (“If, upon completion of the 

hearing and consideration of the record, and after consideration of reasonable alternatives 

. . . , the court finds . . . [commitment is appropriate under this section], the court shall order 

the proposed patient committed . . . .”); Me. Rev. Stat. Ann. Tit. 34-B § 3864(6)(A) (West 

2022) (“The District Court shall so state in the record . . . clear and convincing evidence 

that the person is mentally ill and that the person’s recent actions and behavior demonstrate 

that the person’s illness poses a likelihood of serious harm; that adequate community 

resources for care and treatment of the person’s mental illness are unavailable; [and] that 

inpatient hospitalization is the best available means for treatment of the patient.”); Neb. 

Rev. Stat. Ann. § 71-925(1) (West 2022) (“The state has the burden to prove by clear and 

convincing evidence that (a) the subject is mentally ill and dangerous and (b) neither 

voluntary hospitalization nor other treatment alternatives less restrictive of the subject’s 

liberty than inpatient or outpatient treatment ordered by the mental health board are 

available or would suffice to prevent the harm.”). 

27 Del. Code Ann. tit. 16, § 5001(3), (4) (West 2022) (The determinations of whether 

an individual is “dangerous to others” and “dangerous to self” both “take into account a 

person’s history, recent behavior and any recent act or threat”); Colo. Rev. Stat. Ann. § 27-

65-102(10)(a), (b) (West 2022) (The “danger to the person’s self or others” inquiry 

considers “evidence of recent homicidal or other violent behavior by the person in 

question”); Ga. Code Ann. § 37-3-1(9.1) (West 2022) (“‘Inpatient’ means a person who is 

mentally ill and: (A)(i) Who presents a substantial risk of imminent harm to that person or 

others, as manifested by either recent overt acts or recent expressed threats of violence 

which present a probability of physical injury to that person or other persons . . . .”); Miss. 

Code Ann. § 41-21-61(f) (West 2022) (“‘Person with mental illness’ means any person 

who has a substantial psychiatric disorder . . . which is manifested by instances of grossly 

disturbed behavior or faulty perceptions.”); Mo. Ann. Stat. § 632.005(10) (West 2022) (The 

determination of “likelihood of serious harm” to another person considers “recent overt 

acts, behavior or threats, including verbal threats, which have caused such harm or which 

would place a reasonable person in reasonable fear of sustaining such harm. Evidence of 

that substantial risk may also include information about patterns of behavior that 

historically have resulted in physical harm previously being inflicted by a person upon 

another person.”); Utah Code Ann. § 62A-15-602 (West 2022) (“‘Substantial danger’ 

means . . . an individual is at serious risk of . . . ‘engaging in harmful sexual conduct.’”). 

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In order to illustrate how difficult a factoring analysis has become as the science has 

advanced, we have assembled the following list of risk predictors from the preceding 

discussion (1) concerning continuing scientific, clinical observation and analysis, (2) from 

the state sovereigns, and (3) from Ecker and similar sources:

Substance abuse history

Target identification

Weapon use and availability

Incidents of unsafe behavior

Refusing or forgetting medication

Refusing or forgetting treatment

Delusions

Violent history

Arrest history, especially in youth

Prior fire setting activity

Animal cruelty

Unusual risk taking

Impulsivity

Impaired current mental state

Provocative mate or caregiver

Non-protective mate or caregiver

Viewing oneself as a victim

Lack of compassion or empathy

Harmful intent

Minimizing prior violent actions

History of or mentioning suicide

Self-harm activity or threats

The justified fears of others

Family member opinions

Friend and fellow committee views

Inability to protect or care for self

Same, as to persons in his or her care

Impaired judgment

Refusal to access medical care

Refusal to access psychiatric care

Inability to self-assess for treatment

Mental illness type and history

Family support

Alternative treatment programs

Absence of less-restrictive options

Inadequate available alternatives

Grossly disturbed behavior

Sexual misconduct

This rather unmanageable inventory illustrates why a rigid resort to factoring has 

become impracticable. Instead, the district court’s inquiry must have sufficient play in the 

joints. In some cases, one or more of the factors may be worthy of development and 

discussion. In other cases, more emphasis might instead be placed on statistical and 

actuarial risk predictors developed through expert reports or testimony. In yet other cases, 

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the necessity of revocation or continued supervision may be so apparent that the hearing 

and the district court’s supporting findings might be justifiably brief. But the irreducible 

minimum is a thorough and well-supported explanation by the district court of what 

Congress required: a reasoned and logical linkage between the individual’s failure to 

comply with the conditions of his discharge on the one hand with the finding on the other

that “his continued release would create a substantial risk of bodily injury to another person 

or serious damage to property of another.”

And we stress the discretionary determination of the necessary effort to be devoted

to developing that linkage depends heavily upon counsel surfacing an appropriate 

documentary record in advance of the revocation hearing. It is not the district court’s 

obligation to discern and develop the factors, statistical risk predictors, or other factual 

parameters bearing on the individualized inquiry. Instead, the district court should expect 

counsel and the facility professionals to appropriately develop the matter prior to, and then,

if necessary, during the hearing. And if they default, the district court should direct them

to drill down and perform their due diligence. The district court will then be well positioned 

to make the discretionary call as to the complexity – or simplicity – of the proceedings 

necessary to discharge its statutory obligation.

That process did not occur here. First, counsel utterly failed to furnish the district 

court with a documentary record required for this committee. Second, the district court

failed to require more. Our review of the record leaves much room for speculation where 

none should exist. What we have in this case is a very brief, repetitive, and gap-filled record 

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for a committee with serious, long-term mental challenges who has twice failed conditional 

release over his decade-and-a-half hospitalization and treatment.

Mr. Perkins underwent many years of treatment, with both promising and extremely 

concerning developments along the way. And Mr. Perkins’ case should certainly have been 

more fully developed and intensely scrutinized. According to his July 1, 2013, Annual Risk 

Assessment, he showed “no symptoms of psychopathology until 1999,” after suffering that 

year a “severe” beating which resulted in the perpetrator’s incarceration. J.A. at 190. After 

that traumatic event, he developed “increased mistrust of others and ‘an interest in 

politics.’” Id. He believed he was entitled to compensation for his injuries and, when 

recompense was denied, “he engaged in behaviors that were indicative of serious 

disorganization and severe mental illness.” Id. He regularly carried a firearm, and, of 

significant concern, his delusional thoughts centered on a sitting United States 

congressman. He contacted the congressman’s family “numerous times in 2000, 2003, 

2004, and 2007,” culminating in Mr. Perkins’ arrest that same year for threatening to kill 

the congressman. Id. 

Once hospitalized under § 4241, his condition “fluctuated,” with hypomania, 

disorganized thinking, inappropriate laughter, loud singing and racial slurs. Id. at 193. 

Following his hospitalization under § 4246 in 2009 -- in the months preceding his 2010 

conditional release -- he yet demonstrated “poor insight into his mental illness.” Id. at 194. 

And then he was conditionally released. Unsurprisingly, that release was brief, with his

return to FMC Butner later in 2010. Among other concerning behaviors exhibited during 

his return to hospitalization was “an erotomanic fixation” with one of his treating 

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physicians, along with a hope that “President Obama and Hillary Clinton would ‘burn in

hell.’” J.A. at 196. 

The Risk Panel Assessments in the years following are quite repetitive, but they

give rise to similar concerns repeatedly, culminating in the June 19, 2017, letter to the 

district court from the FMC Butner Acting Warden referencing an attached June 1, 2017,

Annual Risk Assessment and stating: “It is the opinion of our mental health staff that Mr. 

Perkins continues to suffer from a mental disease or defect such that his release would 

create a substantial risk of bodily injury to another person or serious damage to the property 

of another.” J.A. at 239. 

Just months later, however, on March 6, 2018, the United States Attorney filed a 

“CERTIFICATE OF IMPROVED MENTAL CONDITION AND REQUEST FOR 

CONDITIONAL RELEASE [(‘Certificate’)].” J.A. at 60. In support of the conditional 

release request, the Certificate inexplicably references a November 30, 2017, “annual 

forensic risk assessment” – nowhere found in the record on appeal – with no mention of 

its starkly contrasting predecessor Annual Risk Assessment mentioned above which was

filed just five months earlier on June 1, 2017. Id. Upon receipt of the March 6, 2018,

Certificate, the district court then conditionally released Mr. Perkins the next day. 

Again, Mr. Perkins was apprehended on a warrant issued months later on February 

6, 2019, following his (1) refusal to follow Fern Terrace rules, (2) repeatedly failing to 

maintain his GPS monitor, resulting in false alerts, (3) refusing to meet with his psychiatrist 

and take prescribed medications, and (4) failing to receive permission before leaving the 

district. In view of this rather complex thumbnail sketch, and whether the district court 

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chose revocation, continued release, or a modification of conditions, we lack the thorough 

and considered linkage required by Congress that permits us to review the determination.

Although we do not prescribe a set of requirements, this troubling record suggests 

the seriousness of the matter and the inadvisability of simply adopting a facility director’s 

recommendation, whether on the matter of conditional release or its revocation:

[T]he whole idea of a hearing on conditional release implies that the opinion 

of the director of the treating facility is not necessarily the last word; 

otherwise, the statute would have left such decisions entirely in the director’s 

hands. Other experts might testify, and the court would be entitled to consider 

any relevant lay testimony.

United States v. Jain, 174 F.3d 892, 898 (7th Cir. 1999) (emphasis added). 

In those limited cases where a hearing and a very thorough inquiry is warranted

upon revocation or conditional release thereafter, the district court has multiple arrows in 

its quiver to assure it is exquisitely well informed and able to adequately explain its 

decision. For example, it will have the record developed during the § 4246(b) civil 

commitment process and the annual Risk Panel Assessments. Furthermore, § 4246

authorizes the district court to order the comprehensive psychiatric examination and 

reporting contemplated by 18 U.S.C. § 4247(b) and (c). Additionally, the district court and 

the parties will also possess the examination and reporting leading to the § 4246(e) 

conditional discharge determination. 

Following the receipt of this information, perhaps supplemented by any helpful 

actuarial risk assessment information supplied by the expert(s), the district court may then 

conduct the revocation hearing and explain in the record, inter alia, why it deems the 

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subject’s “continued release would” or would not “create a substantial risk of bodily injury 

to another person or serious damage to property of another.” 18 U.S.C. § 4246(f).

For example, if a conditionally released individual is homeless, suffering from 

schizophrenia, exhibiting paranoia, refusing to take his psychotropic medication, and 

avoiding further psychiatric evaluation, the dots are readily connected with little in the way 

of explanation. Alternatively, if the individual is continuing his medication and outpatient 

psychiatric care but has missed a single appointment with his probation officer and is 

between jobs, more depth would be required for a district court’s findings that the defaulted 

conditions give rise to dangerousness and hence revocation.

Furthermore, the need for a lengthy hearing and expert testimony will doubtless

arise only infrequently. For the ten-year period from August 2012 to August 2022, only 

353 conditional discharge cases were closed nationwide. Of those -- again on a nationwide

basis -- only 97 conditional discharges were revoked. By comparison, there were 450,459 

supervised release cases closed during the same period, with 149,304 resulting in at least 

one revocation hearing. Further, there is no indication that our Circuit has a 

disproportionate share of conditional discharge or revocation cases, despite FMC Butner

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falling within our boundaries.28 For the same ten-year period noted above, there were only

43 conditional discharge cases closed in our Circuit, with only 20 resulting in revocation.29

Irrespective of the work required, however, much hangs in the balance when the 

§ 4246(f) dangerousness determination pends. As noted, in the event a high-risk individual 

is released amiss, he or she may wreak havoc until apprehended; alternatively, if a revoked 

individual is restored and eligible for conditional discharge anew, her continued 

incarceration, without a sound, current, and scientific basis, is both an unnecessary and 

intolerable restraint of personal liberty, not to mention an unwarranted burden on the fisc.

VI.

Under the standards we have established today, a district court may now revoke 

conditional discharge upon finding by a preponderance of the evidence that (1) the 

individual failed to comply with his treatment regimen, including all conditions reasonably 

28 FMC Butner “serves as a major medical and psychiatric referral center for male 

inmates.” Dep’t of Justice, Fed. Bureau of Prisons, Legal Resource Guide to the Federal 

Bureau of Prisons 28 (2019). There are three other “major . . . psychiatric referral center[s]” 

in the United States, namely, FMC Carswell (Fort Worth, Texas), FMC Rochester 

(Rochester, Minnesota), and, as noted, USMCFP Springfield (Springfield, Missouri). Id. 

at 28–29. 

29 The data points are freely available to federal probation offices nationwide. 

Unfortunately, the statistics are not readily available otherwise. One commentator has 

observed that “[a]lthough civil commitment is practiced across the United States, basic 

statistics about these policies, such as the numbers of involuntary psychiatric 

hospitalizations each year, remain unknown or inaccessible to much of the public.” 

Nathaniel P. Morris, M.D., Detention Without Data: Public Tracking of Civil Commitment, 

71 Psychiatric Servs. 741, 741 (2020) (noting “there is no federal database that tracks the 

number of patients who are committed against their will to psychiatric units each year. . . . 

Given the loss of liberty, the personal distress, and the stigma involved, this lack of data is 

astounding.” (cleaned up)). 

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related thereto, and that, in light of that failure, (2) his continued release would create a 

substantial risk of bodily injury to another. We note that “district courts generally are 

accorded great latitude when determining whether a mentally ill defendant is ready to be 

released and under what conditions.” Jain, 174 F.3d at 898; United States v. Weed, 389 

F.3d 1060, 1071–72 (10th Cir. 2004) (“Our role on clear error review is not to re-weigh 

the evidence; rather, our review of the district court’s finding is significantly deferential.”

(cleaned up)). But the district court’s finding(s) in support of revocation, or permitting 

continued conditional release (with or without modified conditions), must, as we have 

noted, contain a reasoned and logical linkage of the statutory questions sufficient for us to 

perform our obligations on review.

The record is unclear whether the district court’s findings were made by a 

preponderance of the evidence. It also appears from the record that the district court 

collapsed both inquiries of § 4246(f) into a single question, focusing only on whether Mr. 

Perkins violated conditions of his release and not explaining why “in light of” those 

violations his continued release created a substantial risk to other persons or property.

Additionally, the record would benefit from further development respecting the violations 

alleged and the available, recent records from the facility. For example, the government 

during argument before the district court noted that (1) Mr. Perkins believes that his civil 

commitment is illegal because he has never engaged in threatening behavior, (2) he would 

potentially be homeless if released, (3) he failed to meet with his psychiatrist for a period 

of months, (4) he is verbally abusive to staff at his facility, and (5) he will not maintain his 

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GPS locator. If that evidence is admitted and credited by the district court, it would give 

rise to serious risk assessment concerns. 

On the other hand, we note the government stated as well during argument before 

the district court that “he cannot miss doses. His condition is such that missing a dose can 

have serious impacts. . . . And so missing two doses is going to have a detrimental effect.” 

J.A. at 133. The medication prescribed, how often it was missed, and the effect of the 

missed medications is not a matter for argument. Instead, the government should take note 

of its evidentiary burden, develop evidence on the point, and provide the district court a 

sound basis for making reasoned findings on the matter of dangerousness for that 

particular, alleged violation. Further, at a minimum, the recent, noncontradictory input 

from the Risk Panel would be exceptionally helpful.

VII.

Respecting the proof standard, our learned, concurring colleague offers a much 

briefer discussion. The fulcrum of his analysis is the “internal logic of” § 4246. See

Lockhart v. United States, 577 U.S. 347, 352 (2016). The thoughtful approach he offers 

works quite well for purposes of both §§ 4246(d) and 4246(e). But that same internal logic 

inevitably collides with § 4246(f). It simultaneously demonstrates the necessity of the 

considerable effort we devoted to surfacing and resolving the issues presented. 

As noted, Congress specified textually in § 4246 a high proof standard in subsection 

(d), a lower proof standard in subsection (e), and no proof standard whatsoever in 

subsection (f). We must thus reckon with at least two questions as we go about the task of 

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interpreting § 4246(f). First, did Congress -- by its silence -- leave a crevice within which 

the Judiciary might insert the preponderance standard for subsection (f) determinations? 

Second, if it did not do so, did it leave us to guess about the applicable proof standard? The 

concurring opinion answers the first question in the affirmative and necessarily sidesteps 

the second. In contrast, our research conclusively answers both questions in the negative. 

We eventually reach the same result as our good colleague, but by radically different 

approaches. Our parting of analytical ways might ordinarily be the end of the matter. But 

it is not in this instance, at least if we wish to arrive at the right result in the right way --

and simultaneously avoid a criticism that we have not given due regard to the Article I 

legislature.

Respecting the first question, the concurring opinion is on very shaky interpretive 

ground suggesting Congress in 1984 silently permitted -- or implicitly chose -- the 

preponderance standard. As noted, the preponderance standard urged by our colleague was 

unceremoniously jettisoned by Senate and House Conferees just two days preceding 

congressional passage and the President’s signature. As noted supra, the striking of that 

proof standard during Conference is a drafting event of significant moment; it also restrains 

us from substantive reinsertion by nominal interpretation:

“Few principles of statutory construction are more compelling than the 

proposition that Congress does not intend sub silentio to enact statutory 

language that it has earlier discarded in favor of other language.” INS v. 

Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (quoting Nachman Corp. v. 

Pension Benefit Guar. Corp., 446 U.S. 359, 392–93 (1980) (Stewart, J., 

dissenting)); see also Muniz v. Hoffman, 422 U.S. 454, 468 (1975) 

(explaining that statutory text “may not be read isolated from its legislative 

history and the revision process from which it emerged, all of which place 

definite limitations on the latitude we have in construing it.”).

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Garey v. James S. Farrin, P.C., 35 F.4th 917, 927 (4th Cir. 2022); see also Gulf Oil Corp. 

v. Copp Paving Co., 419 U.S. 186, 200 (1974) (“The Conference Committee . . . deleted 

this ‘effects on commerce’ provision, leaving only the ‘in commerce’ language of s 2(a). . 

. . [I]ts action strongly militates against a judgment that Congress intended a result that it 

expressly declined to enact.”) (cited in Campbell v. McCarthy, 952 F.3d 193, 205 n.10 (4th 

Cir. 2020) (King, J.)); Davis v. Lukhard, 788 F.2d 973, 981 (4th Cir. 1986) (“Inasmuch as 

the conference report represents the final statement of terms agreed upon by both houses 

of Congress, next to the statute itself, it is the most persuasive evidence of Congressional 

intent behind the enactment of a statute.”) (cleaned up); Austin v. Owens-Brockway Glass 

Container, Inc., 78 F.3d 875, 881 (4th Cir. 1996) (“In this circuit, conference reports are 

the most persuasive evidence of legislative intent, after the statute itself.”).

Respecting the second question, Congress did not leave us guessing about the 

applicable proof standard. It is for this reason, if no other, that our lengthy discussion 

leading up to and including Section V.A.3 is so essential in our view. As there discussed, 

Congress (1) explicitly analogized conditional release to the decades-old sentence of 

probation, (2) left the revocation proof standards for both unstated in enacting the 1984 

CCCA, and (3) thus left undisturbed the then well-settled, existing “reasonably satisfied” 

standard as to probation revocation, with the same standard thereafter to govern revocation 

of conditional release. If we had failed to illuminate the fact that the “reasonably satisfied” 

probation revocation standard originated with the Article III Judiciary long before 

enactment of the 1984 CCCA -- and thus then gradually and permissibly morphed 

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judicially once again into the preponderance probation revocation standard across the 

circuits in the years following -- we might erroneously be perceived as substituting our 

judgment for that of the Article I legislature in 1984 -- and thereby imposing a newly 

minted proof standard Congress rejected during Conference.30 That is a criticism we would 

just as soon avoid. 

We likewise differ with our concurring colleague’s objection to our use of 

information outside the record. While he does not cite the sources giving rise to that 

challenge, we detect no difficulty. None of the authorities we reference are beyond our 

permissible reach. Fed. R. Evid. 201 cmt. (“Legislative facts, on the other hand, are those 

which have relevance to legal reasoning and the lawmaking process, whether in the 

30 The concurring opinion cites “the only circuit court of appeals to address this 

issue in a published decision. Sealed Appellee v. Sealed Appellant, 665 F.3d 620 (5th Cir. 

2011).” But Sealed Appellee notes just the opposite. The panel observed the parties were 

not in controversy on the proof standard. Id. at 623 (“[W]e hold that the fair preponderance 

of evidence standard, not challenged as the standard appropriate to decide whether the 

violative conduct occurred, also applies to the twin finding of a substantial risk of harm.”)

(emphasis added). The concise three-page opinion devotes but a few sentences to the 

statutory text. It is thus of little assistance. It does, however, illustrate, like other decisions 

we noted supra, that no court has yet been willing to undertake the difficult statutory 

interpretation question here presented.

Neither are we persuaded that Herman & MacLean v. Huddleston, 459 U.S. 375, 

390 (1983), and similar cases materially aid the inquiry. While we are, as the concurring 

opinion cogently observes, dealing with a civil commitment matter, there is a vast gulf 

between that matter and ordinary civil litigation. The securities fraud and gender 

discrimination controversies cited in the concurring opinion are matters of significance. 

But they are not meaningful comparators to cases such as this one, which began with 

serious threats against a congressman and his family by an individual with serious mental 

challenges, with that individual hanging in the balance between indefinite confinement and

conditional freedom. We thus disagree with the notion this atypical case is a neat match for 

the usual civil procedural rules and standards otherwise applicable.

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formulation of a legal principle or ruling by a judge or court or in the enactment of a 

legislative body.”); see Brenda C. See, Written in Stone? The Record on Appeal and the 

Decision-Making Process, 40 Gonz. L. Rev. 157, 191 (2005) (“‘Legislative’ facts concern 

matters which relate to what is known as the ‘legislative’ function of the court, where the 

court is in essence ‘making law’ either by filling a gap in the common law by formulating 

a rule, construing a statute, or framing a constitutional rule.”) (quoting Edward J. 

Imwinkelried, Expert Testimony By Ethicists: What Should Be the Norm?, 76 Temp. L. 

Rev. 91, 114 (2003)); Kenneth Culp Davis, An Approach to the Problems of Evidence in 

the Administrative Process, 55 Harv. L. Rev. 364, 406 (1942); See, supra, at 196 & n.346 

(quoting a separate study of Supreme Court decisional law and observing “from 1991 

forward there has been a ‘substantial and continuing increase in the [Supreme] Court’s 

citation of nonlegal sources’ and further noting “non-legal citations consisted of secondary 

materials other than cases, constitutional provisions, legal treatises, law reviews, 

governmental documents, and standard compilations of legislative and constitutional 

history. Thus, the set of non-legal citations consists largely of citations to history, political 

science, economics, and other non-legal academic journals, to newspapers and popular 

periodicals, to dictionaries and encyclopedias, to books of history, politics, and the like, 

and occasionally to poetry, plays, and literature.”) (quoting Frederick Schauer & Virginia 

J. Wise, Legal Positivism as Legal Information, 82 Cornell L. Rev. 1080, 1110 n.92 

(1997)). 

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Our very limited resort to history and settled psychiatric science pales by 

comparison to the outside research performed -- and exotic sources consulted -- at the 

highest level of the Judiciary. Allison Orr Larsen, Confronting Supreme Court Fact 

Finding, 98 Va. L. Rev. 1255, 1261–62 (2012) (“Justice Breyer is not apologetic for his 

independent research and he is not alone. Justice Alito, who concurred in the result of 

[Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011),] but disagreed with 

affording First Amendment protection to these video games, peppered his opinion with 

citations to websites (like slashgear.com and popularmechanics.com), touting the 

‘astounding’ violence, ‘antisocial theme,’ and ‘interactive nature’ of these video games. 

His opinion, in fact, prompted Justice Scalia to criticize Alito for his ‘considerable 

independent research.’ And not to be outdone, Justice Thomas’s dissent in the same case 

cites fifty-nine sources to establish the fact that the Founding generation believed parents 

had complete authority over their children’s development. Fifty-seven of those sources 

cannot be found in the briefs -- party briefs or amicus briefs -- and were thus the product 

of in-house research.”); id. at 1276–77 (“Several of the sources Justice Scalia uses in 

District of Columbia v. Heller to set forth the history of the language of the Second 

Amendment were drawn from outside of the party briefs or the hundreds of amicus briefs 

filed in that case. . . . Once again the Justices who rely extensively on such in-house 

research cannot be identified by the politics of the President who appointed them. 

Examples of such extensive in-house fact finding include: Justice Kennedy’s opinion for 

the Court in Graham v. Florida, Justice Alito’s majority opinion in McDonald v. City of 

Chicago, Justice Ginsburg’s dissent in Gonzales v. Carhart, Justice Thomas’s concurrence 

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in Safford Unified School District No. 1 v. Redding, Justice Scalia’s concurrence in Citizens 

United v. FEC, and Justice Breyer’s dissents in Free Enterprise Fund v. Public Company 

Accounting Oversight Board and Parents Involved in Community Schools v. Seattle School 

District No. 1. In-house fact finding is thus not a rarity in any sense of the word. It happens 

in many cases, can be found in opinions from many Justices, and can account for a 

substantial percentage of the factual citations in any one opinion.”). 

These differences aside, we are grateful to our colleague for joining the result 

reached.

VIII.

Based upon the foregoing discussion, we vacate the district court’s order and 

remand for further proceedings consistent with the foregoing discussion.

 VACATED AND REMANDED

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AGEE, Circuit Judge, concurring in the judgment:

I agree with the majority that 18 U.S.C. § 4246(f) requires the determination to 

revoke conditional discharge to be based upon a preponderance of the evidence and that

the district court’s discussion fell short of making the requisite findings to revoke Perkins’ 

conditional discharge. For that reason, I concur in the decision to vacate the district court’s 

order and remand the case for further proceedings. I write separately, however, because the 

majority opines at length on matters unnecessary to resolve the case before us and which 

are not contained in the record. 

I.

The first issue before the Court is whether § 4246(f)’s revocation-of-conditionaldischarge determination must be based on a preponderance-of-the-evidence or a clear-andconvincing-evidence standard. Like the majority, I conclude that the preponderance-of-theevidence standard applies. I reach this conclusion because neither the Constitution nor the 

statute requires a heightened degree of proof and the default degree of proof in civil cases—

a preponderance—is appropriate. In doing so, I agree with the only circuit court of appeals 

to address this issue in a published decision. Sealed Appellee v. Sealed Appellant, 665 F.3d 

620 (5th Cir. 2011).1 For these reasons, elaborated on below, I agree that a district court 

1 Perkins points to a later Fifth Circuit decision to contend that it “suggest[ed]” the 

clear-and-convincing-evidence standard should apply. That case, United States v. Mitchell, 

709 F.3d 436 (5th Cir. 2013), does not apply. Looking at a different, albeit identical, 

statutory provision regarding revocation of discharge for persons found not guilty by 

reason of insanity (§ 18 U.S.C. § 4243(g)), Mitchell did not resolve the issue of the degree 

(Continued)

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must make the requisite findings to revoke conditional discharge under subsection (f) by a 

preponderance of the evidence.

Turning first to the statute: section 4246 sets out the procedure for civilly 

committing an individual who, along with other criteria, is “presently suffering from a 

mental disease or defect as a result of which his release would create a substantial risk of 

bodily injury to another person or serious damage to property of another.” § 4246(a). The 

first four subsections of the statute discuss the procedures and criteria for an initial 

commitment. § 4246(a)–(d). Subsection (d) specifies that the district court’s factual 

findings must be made using the clear-and-convincing-evidence standard: the district court 

must “find[] by clear and convincing evidence that the person is presently suffering from 

a mental disease or defect as a result of which his release would create a substantial risk of 

bodily injury to another person or serious damage to property of another.” Subsection (e) 

specifies the procedures and criteria for discharge and conditional discharge from civil 

commitment, requiring that the court make its findings “by a preponderance of the 

evidence.” Subsection (f) addresses when a district court may revoke conditional discharge, 

of proof required, determining that even under the higher standard, the record supported 

the district court’s findings. Id. at 443.

The majority takes issue with my recognition that Sealed Appellee also rejected the 

clear-and-convincing-evidence standard in favor of a preponderance-of-the-evidence one. 

Ante at 96 n.30. That decision did “hold” that the district court appropriately used the 

preponderance-of-the-evidence standard when assessing whether to revoke conditional 

discharge under § 4246(f). 665 F.3d at 622–23. Although the parties did not challenge the 

standard specifically applicable to the part of that inquiry relating to whether a violation 

occurred, that does not alter the court’s statutory analysis. See id. at 623. More to the point, 

no circuit court has held that a higher standard applies to § 4246(f). 

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but unlike subsections (d) and (e), it does not expressly state the evidentiary standard the 

court must use to make that determination.2

Given subsection (f)’s silence on the specific issue of the degree of proof required, 

it is reasonable to assume that Congress’s silence is precisely that—silence. See Zuber v. 

Allen, 396 U.S. 168, 185 (1969) (“Legislative silence is a poor beacon to follow in 

[statutory interpretation].”). And when, as in subsection (f), Congress is silent on a 

particular matter, the Court “must presume that Congress is aware of the legal context in 

which it is legislating.” Battle v. Ledford, 912 F.3d 708, 717 (4th Cir. 2019) (internal 

citation and quotation marks omitted). Here, that context includes the understanding that 

when “Congress has not prescribed the appropriate standard of proof and the Constitution 

does not dictate a particular standard, [the Court] must prescribe one.” Herman & MacLean 

v. Huddleston, 459 U.S. 375, 389 (1983).3

In determining the appropriate degree of proof the Court should prescribe for 

subsection (f), we are not operating on a blank slate. That’s so because the Supreme Court 

and this Court have long recognized that the presumptive degree of proof required in 

2 Subsections (g) and (h) discuss releasing certain individuals to one of the States or 

the District of Columbia, and have no bearing on the issues in this case.

3 As my recitation of and reliance on these general principles should reflect, the 

majority opinion mischaracterizes my approach. I do not suggest that Congress has adopted 

a preponderance standard sub silentio. Ante at 94–95. To the contrary, I recognize that the 

text of § 4246(f) is silent on which standard of proof applies and that its silence requires 

this Court to supply the proper standard by applying standard tools available to us to fill 

that void. As the majority recognizes, our disagreement lies in which rules and principles 

best guide us in carrying out that task rather than the conclusion they direct us to reach.

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federal civil cases is a preponderance of the evidence, and that presumption is overcome 

only when the Constitution or statutory language requires a heightened standard. Id. at 

389–90; cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989) (“[O]ne of the 

[conventional rules of civil litigation] is that parties to civil litigation need only prove their 

case by a preponderance of the evidence. Exceptions to this standard are uncommon, and 

in fact are ordinarily recognized only when the government seeks to take unusual coercive 

action . . . against an individual.”), superseded by statute on other grounds, Civil Rights 

Act of 1990, 42 U.S.C. § 2000e-2(m); Desert Palace, Inc. v. Costa, 539 U.S. 90, 98–99 

(2003) (citing Price Waterhouse and observing that Congress’ “failure to” require a 

heightened showing “is significant, for [it] has been unequivocal when imposing 

heightened proof requirements in other circumstances, including in other provisions of” 

the title under review). Because subsection (f) does not explicitly require a heightened 

degree of proof, the preponderance-of-the-evidence standard applies absent a requirement 

of the Constitution or an applicable statute.

The Constitution does not require a heightened standard for a revocation-ofconditional-discharge proceeding. The Supreme Court has held that the Constitution 

requires an initial civil commitment determination to be made using a clear-andconvincing-evidence standard, but it has never indicated that a heightened standard remains 

necessary in subsequent decisions relating to the same civil-commitment decision of the 

same individual. In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court reiterated 

that “civil commitment for any purpose constitutes a significant deprivation of liberty that 

requires due process protection,” id. at 426, and required greater than a preponderance of 

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the evidence and yet less than the criminal standard of proof beyond a reasonable doubt, 

id. at 426–33. The Court cited numerous reasons why the Constitutional demands of due 

process required the initial commitment decision to be made by a heightened degree of 

proof, including the “social consequences to the individual” (“stigma”), id. at 425–26; and 

the “gravity” of the state’s decision “to justify confinement,” id. at 427. These 

constitutional prerogatives supported a clear-and-convincing-evidence standard to civilly 

commit someone as part of the initial commitment decision under § 4246(a)–(d). 

Subsequent decisions related to discharge that flow as a consequence of that original 

commitment do not similarly require a heightened degree of proof. This is in part because 

the original due-process concerns that led the Supreme Court to require a heightened degree 

of proof have already been largely satisfied in the initial proceeding. The issue in 

subsequent post-commitment proceedings is the separate concern as to when that 

commitment should change form. That’s an inherently different inquiry.4

In an analogous example from criminal law, consider an initial criminal sentence of 

imprisonment and the later revocation of supervised release. While an individual can be 

sentenced to imprisonment only after being found guilty of a criminal offense beyond a 

reasonable doubt, that same individual can be reimprisoned based on a revocation of 

supervised release based on violations—criminal or not—that need only be found by a 

4 This conclusion does not implicate a subsequent civil commitment following 

unconditional discharge from an earlier commitment. In that event, the government must 

start a new commitment proceeding and must satisfy its burden anew. That’s a different 

inquiry than presented here, where conditional discharge and revocation of that conditional 

discharge both occur under the parameters of the initial civil commitment.

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preponderance of the evidence. E.g., Johnson v. United States, 529 U.S. 694, 700 (2000) 

(“Although such violations often lead to reimprisonment, the violative conduct need not be 

criminal and need only be found by a judge under a preponderance of the evidence 

standard, not by a jury beyond a reasonable doubt.”); United States v. Armstrong, 187 F.3d 

392, 394 (4th Cir. 1999) (“[I]n [a revocation of supervised release] proceeding[], findings 

of fact are made under a preponderance-of-the-evidence, rather than reasonable doubt, 

standard, the traditional rules of evidence are inapplicable, and the full panoply of 

constitutional protections afforded a criminal defendant is not available.” (cleaned up));

see also United States v. Cunningham, 607 F.3d 1264, 1268 (11th Cir. 2010) (per curiam) 

(collecting cases from multiple circuit courts recognizing that different due process 

concerns exist in the context of the revocation process than the initial sentencing decision 

because the former flows directly from the latter); United States v. McNeil, 415 F.3d 273, 

277 (2d Cir. 2005) (“[A] violation of supervised release is not a separate basis for criminal 

punishment that requires a jury verdict and all that that entails. Imposition of supervised 

release is authorized by the original conviction, and so too are the consequences of its 

violation. Revocation required only a finding by a judge under a preponderance of the 

evidence standard.” (internal citations and quotation marks omitted)).5

5 In United States v. Haymond, 139 S. Ct. 2369 (2019), the Supreme Court 

articulated a caveat to this general understanding when a statute imposed a new, mandatory 

term of imprisonment distinct from the defendant’s original sentence based on the conduct 

that caused the revocation of supervised release. But these nuances are not relevant for 

present purposes.

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If that principle applies between an initial decision to imprison someone under the 

highest degree of proof—reasonable doubt—and a later decision to revoke supervised 

release, it applies all the more so as between an initial decision to civilly commit someone 

and a later decision to revoke conditional discharge. In the context of either the criminal or 

civil revocation, the court is not imposing anything new, but rather reverting to the status 

that had already been authorized in compliance with constitutional due process. The 

subsequent decision to “revoke” the prior conditional relief does not implicate the 

Constitution in the same manner as the original decision, but is, instead, “anull[ing] by 

recalling or taking back.” Webster’s Third New International Dictionary 1944 (3d ed. 

1961); see Johnson v. United States, 529 U.S. at 706 (discussing the definition of 

“revocation” in the context of supervised release proceedings). Accordingly, the 

Constitution does not require a heightened standard to be used in a revocation-ofconditional-discharge proceeding under subsection (f). 

While Congress could impose a heightened degree of proof, it did not do so here, 

and subsection (f)’s function within § 4246 reinforces the conclusion that a preponderanceof-the-evidence standard applies to a district court’s determination to revoke conditional 

discharge. As already noted, subsection (f) is silent on this issue, so Congress has not 

explicitly imposed a heightened statutory degree of proof. Nor does any other provision of 

§ 4246 imply that subsection (d)’s heightened standard carries over to subsection (f). To 

the contrary, requiring clear and convincing evidence to revoke discharge would 

“undermine[]” “the internally coherent structure of Section 4246.” Sealed Appellee, 665 

F.3d at 622; see also Lockhart v. United States, 577 U.S. 347, 352 (2016) (pointing to the 

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“internal logic of” the statutory language as a beginning point for understanding a 

provision’s context). It would do so in at least two ways—first, by impeding proper 

operation of subsection (e)’s preponderance-of-the-evidence standard and, second, by 

creating an incentive for individuals on conditional discharge to violate the requirements 

of their release because re-commitment would require a heightened standard of review. See 

Sealed Appellee, 665 F.3d at 622–23. 

The connection between authorizing discharge or conditional discharge under 

subsection (e) and revoking conditional discharge under (f) makes it appropriate to carry 

over subsection (e)’s express preponderance-of-evidence standard to subsection (f). As 

described above, subsection (e) states that a determination to discharge or conditionally 

discharge someone must be made based on findings supported by a preponderance of the 

evidence. Conditional discharge is appropriate when a preponderance of the evidence 

shows that an individual’s “conditional release under a prescribed regimen of medical, 

psychiatric, or psychological care or treatment would no longer create a substantial risk of 

bodily injury to another person or serious damage to property of another.” § 4246(e)(2). In 

that event, the district court has authority to order certain conditions of release, including 

a “prescribed regimen of medical, psychiatric, or psychological care or treatment.” 

§ 4246(e)(2)(A) & (B). Subsection (e) further provides that “at any time,” the district court 

may hold a hearing “employing the same criteria” at which it may “modify or eliminate 

the regimen of medical, psychiatric, or psychological care or treatment.” § 4246(e). 

But individuals conditionally discharged under subsection (e) are subject to 

subsection (f)’s provisions permitting revocation of their conditional discharge. 

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Specifically, subsection (f) authorizes a district court to revoke discharge upon 

determining, after a hearing, that the conditionally discharged individual has violated a 

condition of his discharge and that as a consequence his “continued release would create a 

substantial risk of bodily injury to another person or serious damage to property of 

another.” § 4246(f). Because subsection (f) permits a court to undo what subsection (e) 

authorizes, the two determinations are tethered in a way that makes it germane and 

appropriate to use the same standard of proof. To put a finer point on it, as between these 

two subsections, the original decision to permit conditional discharge requires certain 

findings by a preponderance of the evidence, one of which is that “release under a 

prescribed regimen . . . would no longer create” the risk that authorized commitment in the 

first instance. § 4246(e)(2). But upon proof that he has violated the terms of the prescribed 

regimen, the individual has demonstrated that he cannot abide by the only criteria under 

which the district court had found it appropriate to reconsider the initial commitment 

decision. So, in a revocation proceeding, subsection (f) tasks the district court first with 

finding that a violation of the regimen occurred and then reconsidering whether that 

violation means that commitment, conditional discharge, or discharge is appropriate going 

forward. In effect, the provision puts the district court back in the position it was in when 

originally considering whether discharge was initially appropriate under subsection (e). 

The same standard logically applies to both subsections.

Further, the final sentence of subsection (e) provides that the “court may at any time, 

after a hearing employing the same criteria, modify or eliminate the regimen of medical, 

psychiatric, or psychological care or treatment.” That the conditions of discharge can be 

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modified or eliminated based on a preponderance-of-the-evidence standard provides 

further support for the conclusion that the conditional discharge itself should be revoked 

under subsection (f) using that standard. See Sealed Appellee, 665 F.3d at 623 (“This 

subsection (e) evidentiary showing necessary to modify or eliminate conditional release 

should not be circumvented by persons who violate terms of release yet then oppose 

revocation and commitment on the ground that the district court must re-find clear and 

convincing proof of a substantial risk of harm.”).

This interpretation makes practical sense not only of these two adjoining and 

interrelated subsections, but also of § 4246 as a whole. Requiring clear and convincing 

evidence for subsection (f) could create an incentive for individuals who are conditionally 

discharged to violate their conditions of release. An individual already found to be subject 

to commitment under subsection (d) could obtain conditional discharge under subsection 

(e)’s preponderance-of-the-evidence showing, violate the terms of that discharge, and then 

force litigation over the consequences of his violation of the terms of the discharge under 

subsection (d)’s heightened standard of proof. See Sealed Appellee, 665 F.3d at 622 (“A 

contumacious person could violate release conditions yet continually relitigate against 

commitment under subsection (d)’s clear and convincing proof standard.”). There is no 

indication that Congress mandated such a result, particularly sub silentio. 

For these reasons, I agree with the majority that a preponderance-of-the-evidence 

standard is appropriate for revocation of conditional discharge under subsection (f). There 

may be additional support for this standard in historical underpinnings and analogous 

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statutory provisions, as the majority relies on, but I do not believe they are necessary to 

reach this conclusion and stray in some instance outside the record. 

II.

The second issue before the Court is whether the district court made adequate factual 

findings under subsection (f) to support its decision to revoke Perkins’ conditional 

discharge. As noted, subsection (f) requires the district court to make two findings—(1) 

the conditionally discharged individual “fail[ed] to comply with the prescribed regimen of 

medical, psychiatric, or psychological care or treatment,” and (2) that, in light of those 

violations, “his continued release would create a substantial risk of bodily injury to another 

person or serious damage to property of another.” As the majority opinion recites at greater 

length, although the district court twice found that Perkins violated several conditions of 

his discharge, its explanation was limited to noting which violations it found to have 

occurred. Ante at 5–10, 57–58. Moreover, this Court specifically remanded the case at the 

Government’s request so that the district court could hold a further hearing on subsection 

(f)’s additional requirement that Perkins’ “continued conditional release would create a 

substantial risk of bodily injury to another person or serious damage to property of 

another.” However, on this point, the court failed to provide any relevant findings at either 

hearing. Instead, it expressed “hope [that] the Fourth Circuit will amplify what it meant by 

having to find [this] additional requirement[],” J.A. 139, and simply concluded, “the 

violations heretofore set out depicting the conduct of the defendant during his release 

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would create a substantial risk of bodily injury to another person or serious damage to the 

property of another,” J.A. 141.

I agree with the majority opinion that this record provides an insufficient basis to 

affirm the district court’s order. At the outset, it’s not clear from the record that the district 

court used a preponderance-of-the-evidence standard for both required findings. More 

problematically, as the majority opinion observes, “the district court collapsed both 

inquiries of § 4246(f) into a single question, focusing only on whether Mr. Perkins violated 

conditions of his release and not explaining why ‘in light of’ those violations his continued 

release created a substantial risk to other persons or property.” Ante at 92. 

Congress enacted an intentionally broad standard that permits the district court to 

consider on remand whatever evidence it deems relevant to making its determination. As 

the text of subsection (f) states, to revoke conditional discharge, district courts must find 

both that violations of conditional discharge occurred and that those violations mean that 

the individual’s continued conditional discharge would “create a substantial risk of bodily 

injury to another person or serious damage to the property of another.” In most cases, this 

will entail a relatively straightforward comparison of the original grounds for civil 

commitment, the reasons why discharge was conditioned on the prescribed regimen, and 

how the violation of those conditions leads back to the risks associated with non-compliant 

discharge. Nothing in the provision suggests that the inquiry requires a detailed evidentiary 

hearing of the sort contemplated for initial commitment under subsections (a) to (d). 

The majority opinion’s comprehensive discussion of factors that may be relevant in 

a particular proceeding delves beyond the scope of subsection (f) and seems more 

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appropriately covered in the context of what might be required in an initial commitment 

proceeding. I do not join its discussion on this point because it offers a detailed framework 

that Congress did not prescribe and ventures well beyond the record. And, by articulating 

such an extensive list for the relatively straightforward and broad concept articulated in 

subsection (f), the majority opinion may have inadvertently created a procedural quagmire 

for district courts and counsel alike in conducting revocation proceedings. 

Counsel and district courts know the records in each case and can tailor the 

arguments and evidence to fit the circumstances. In like manner, district courts can make 

the requisite findings to support revocation of conditional discharge. Where they do not, 

that failure can be addressed on a case-by-case basis rather than by articulating a freestanding and expansive list where parts of it may well be irrelevant and misleading in a 

particular case.

In any event, for present purposes, the district court failed to make any findings 

connecting Perkins’ failure to comply with the conditions of his discharge to a 

determination that “his continued release would create a substantial risk of bodily injury to 

another person or serious damage to property of another.” That is sufficient, in and of itself, 

to require remand.

* * * *

For these reasons, I concur in the judgment of the majority opinion, which vacates 

the district court’s order revoking Perkins’ conditional discharge and remands for further 

proceedings under a preponderance-of-the-evidence standard.

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